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Notice2022-07306

Public Health Determination and Order Regarding Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists

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Published

April 6, 2022

Issuing agencies

Health and Human Services DepartmentCenters for Disease Control and Prevention

Abstract

Full Text

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<title>Federal Register, Volume 87 Issue 66 (Wednesday, April 6, 2022)</title>
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[Federal Register Volume 87, Number 66 (Wednesday, April 6, 2022)]
[Notices]
[Pages 19941-19956]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07306]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention

Public Health Determination and Order Regarding Suspending the
Right To Introduce Certain Persons From Countries Where a Quarantinable
Communicable Disease Exists

AGENCY: Centers for Disease Control and Prevention (CDC), Department of
Health and Human Services (HHS).

ACTION: General notice.

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SUMMARY: The Centers for Disease Control and Prevention (CDC), a
component of the U.S. Department of Health and Human Services (HHS), is
hereby issuing this Public Health Determination and Order Regarding
Suspending the Right to Introduce Certain Persons from Countries Where
a Quarantinable Communicable Disease Exists (Public Health
Determination and Termination). This Public Health Determination and
Termination terminates the Order Suspending the Right to Introduce
Certain Persons from Countries Where a Quarantinable Communicable
Disease Exists, issued on August 2, 2021 (August Order), and all
related prior orders issued pursuant to the authorities in sections 362
and 365 of the Public Health Service (PHS) Act and implementing
regulations. This Termination will be implemented on May 23, 2022.

DATES: The Termination issued in this Order will be implemented on May
23, 2022.

FOR FURTHER INFORMATION CONTACT: Candice Swartwood, Division of Global
Migration and Quarantine, National Center for Emerging and Zoonotic
Infectious Diseases, Centers for Disease Control and Prevention, 1600
Clifton Road NE, MS H16-4, Atlanta, GA 30329. Telephone: 404-498-1600.
Email: <a href="/cdn-cgi/l/email-protection#4024272d31302f2c2923392f2626292325002324236e272f36"><span class="__cf_email__" data-cfemail="4521222834352a292c263c2a23232c2620052621266b222a33">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

Coronavirus disease 2019 (COVID-19) is a quarantinable communicable
disease caused by the SARS-CoV-2 virus. As part of U.S. government
efforts to mitigate the introduction, transmission, and spread of
COVID-19, CDC issued the August Order, replacing a prior order issued
on October 13, 2020, which continued a series of orders issued pursuant
to 42 U.S.C. 265, 268 and the implementing regulation at 42 CFR 71.40,
suspending the right to introduce certain persons into the United
States from countries or places where the quarantinable communicable
disease exists in order to protect the public health from an increased
risk of the introduction of COVID-19 (CDC Orders).
The CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR 71.40
were intended to reduce the risk of COVID-19 introduction,
transmission, and spread at ports of entry (POE) and U.S. Border Patrol
stations by significantly reducing the number and density of covered
noncitizens held in these congregate settings, thereby reducing risks
to U.S. citizens and residents, Department of Homeland Security and
U.S. Customs and Border Patrol personnel and noncitizens at the
facilities, and local healthcare systems. CDC deemed the measures
included in the CDC Orders necessary for the protection of public
health during the ongoing COVID-19 pandemic.
The August Order applied specifically to ``covered noncitizens,''
defined as ``persons traveling from Canada or Mexico (regardless of
their country of origin) who would otherwise be introduced into a
congregate setting in a POE or U.S. Border Patrol station at or near
the U.S. land and adjacent coastal borders subject to certain
exceptions detailed below; this includes noncitizens who do not have
proper travel documents, noncitizens whose entry is otherwise contrary
to law, and noncitizens who are apprehended at or near the border
seeking to unlawfully enter the United States between POE.''

[[Page 19942]]

Three groups typically make up covered noncitizens--single adults (SA),
individuals in family units (FMU), and unaccompanied noncitizen
children (UC).
In the August Order, CDC committed to reassessing the public health
circumstances necessitating the Order at least every 60 days by
reviewing the latest information regarding the status of the COVID-19
public health emergency and associated public health risks, including
migration patterns, sanitation concerns, and any improvement or
deterioration of conditions at the U.S. borders. On March 11, 2022, CDC
fully terminated the August Order and all previous orders issued under
42 U.S.C. 265, 268 and 42 CFR 71.40 with respect to UC based on a
thorough determination of the status of the COVID-19 pandemic, an
analysis of the specific care available to UC, and the absence of
legitimate countervailing reliance interests on the CDC Orders. The
instant Public Health Determination and Termination considers the
current status of the pandemic, including the receding numbers of
COVID-19 cases, hospitalizations, and deaths most recently related to
the Omicron variant, and constitutes the reassessment concluding on
March 30, 2022.
Based on this analysis, the CDC Director finds that, pursuant to 42
U.S.C. 265 and 42 CFR 71.40, there is no longer a serious danger that
the entry of covered noncitizens, as defined by the August Order, into
the United States will result in the introduction, transmission, and
spread of COVID-19 and that a suspension of the introduction of covered
noncitizens is no longer required in the interest of public health.
While the introduction, transmission, and spread of COVID-19 into the
United States is likely to continue to some degree, the cross-border
spread of COVID-19 due to covered noncitizens does not present the
serious danger to public health that it once did, given the range of
mitigation measures now available. CDC continues to stress the need for
robust COVID-19 mitigation measures at the border, including
vaccination and continued masking in congregate settings. CDC has
determined that the extraordinary measure of an order under 42 U.S.C.
265 is no longer necessary, particularly in light of less burdensome
measures that are now available to mitigate the introduction,
transmission, and spread of COVID-19. Therefore, CDC is terminating the
August Order and all related prior orders issued pursuant to 42 U.S.C.
265, 268 and 42 CFR 71.40. This Termination will be implemented on May
23, 2022, to enable the Department of Homeland Security (DHS) time to
implement appropriate COVID-19 protocols, such as scaling up a program
to offer COVID-19 vaccinations to migrants, and prepare for full
resumption of regular migration under Title 8 authorities.

Legal Authority

CDC is hereby immediately terminating the August Order and all
prior orders issued pursuant to sections 362 and 365 of the PHS Act (42
U.S.C. 265, 268) and the implementing regulation at 42 CFR 71.40.

Referenced Order

A copy of the Order is provided below, and a copy of the signed
Order can be found at <a href="https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/Final-CDC-Order-Prohibiting-Introduction-of-Persons.pdf">https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/Final-CDC-Order-Prohibiting-Introduction-of-Persons.pdf</a>.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention (CDC)

Order Under Sections 362 & 365 of the Public Health Service Act (42
U.S.C. 265, 268) and 42 CFR 71.40

Public Health Determination and Order Regarding the Right To Introduce
Certain Persons From Countries Where a Quarantinable Communicable
Disease Exists

Executive Summary

The Centers for Disease Control and Prevention (CDC), a component
of the U.S. Department of Health and Human Services (HHS), is hereby
issuing this Public Health Determination and Order Regarding Suspending
the Right to Introduce Certain Persons from Countries Where a
Quarantinable Communicable Disease Exists (Public Health Determination
and Termination). This Public Health Determination and Termination
terminates the Order Suspending the Right to Introduce Certain Persons
from Countries Where a Quarantinable Communicable Disease Exists,
issued on August 2, 2021 (August Order),\1\ and all related prior
orders issued pursuant to the authorities in sections 362 and 365 of
the Public Health Service (PHS) Act (42 U.S.C. 265, 268) and the
implementing regulation at 42 CFR 71.40 (CDC Orders); \2\ this
Termination will be implemented on May 23, 2022. The August Order
continued a suspension of the right to introduce ``covered
noncitizens,'' as defined in the Order,\3\ into the United States along
the U.S. land and adjacent coastal borders.\4\ The August Order states
that CDC will reassess at least every 60 days whether the Order remains
necessary to protect the public health. Based on the public health
landscape, the current status of the COVID-19 pandemic, and the
procedures in place for the processing of covered noncitizens, taking
into account the inherent risks of transmission of SARS-CoV-2 in
congregate settings, CDC has determined that a suspension of the right
to introduce such covered noncitizens is no longer necessary to protect
U.S. citizens, U.S. nationals, lawful permanent residents, personnel
and noncitizens at the ports of entry (POE) and U.S. Border Patrol
stations, and destination communities in the United States. This
Termination will be implemented on May 23, 2022, to enable the
Department of Homeland Security (DHS) to implement appropriate COVID-19
mitigation protocols, such as scaling up a program to provide COVID-19
vaccinations to migrants, and prepare for full resumption of regular
migration processing under Title 8 authorities. Until that date, it is
CDC's expectation that DHS will continue to apply exceptions outlined
in the August Order to covered noncitizens as appropriate, including
the exception based on the totality of an individual's circumstances on
a case-by-case basis.
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\1\ Available at <a href="https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-Introduce-_Final_8-2-21.pdf">https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-Introduce-_Final_8-2-21.pdf</a>
(last visited Mar. 7, 2022); see also 86 FR 42828 (Aug. 5, 2021).
\2\ ``CDC Orders'' issued under these legal authorities are
found at 85 FR 17060 (Mar. 26, 2020), 85 FR 22424 (Apr. 22, 2020),
85 FR 31503 (May 26, 2020), 85 FR 65806 (Oct. 16, 2020), and 86 FR
42828 (Aug. 5, 2021) (fully incorporating by reference 86 FR 38717
(July 22, 2021), see 86 FR 42828, 42829 at note 3).
\3\ See infra I.
\4\ The August Order specifically excepted unaccompanied
noncitizen children (UC) and incorporated an exception for UC issued
by CDC on July 16, 2021 (July Exception). Public Health
Determination Regarding an Exception for Unaccompanied Noncitizen
Children from Order Suspending the Right to Introduce Certain
Persons from Countries Where a Quarantinable Communicable Disease
Exists, Centers for Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren.pdf">https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren.pdf</a> (July 16, 2021); 86 FR 38717 (July
22, 2021); see 86 FR 42828, 42829 at note 1 (Aug. 5, 2021) (which
fully incorporated by reference the July Exception relating to UC).
On March 11, 2022, CDC fully terminated the August Order and all
prior orders issued under the same authorities with respect to UC.
See <a href="https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren-update.pdf">https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/NoticeUnaccompaniedChildren-update.pdf</a>.
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Outline of Determination and Order

I. Background
A. Evolution of the COVID-19 Pandemic and the U.S. Government
Response
1. First Wave--January to June 2020
2. Second Wave--June to August 2020

[[Page 19943]]

3. Third Wave--Alpha Variant--September 2020 to May 2021
4. Fourth Wave--Delta Variant--June to October 2021
5. Fifth Wave--Omicron Variant--November 2021 to March 2022
B. Current Status of the COVID-19 Pandemic
1. Community Levels
2. Healthcare Systems and Resources
3. Mitigation Measures
a. Test Availability
b. Vaccines and Boosters
c. Treatments
4. Congregate Settings
5. DHS Mitigation Measures
II. Public Health Determination
III. Legal Considerations
A. Temporary Nature of Orders Under 42 U.S.C. 265 and Absence of
Reliance Interests
B. Basis for Termination Under 42 U.S.C. 265, 268 and 42 CFR
71.40
IV. Issuance and Implementation
A. Implementation of This Termination
B. APA Review

I. Background

Coronavirus disease 2019 (COVID-19) is a quarantinable communicable
disease \5\ caused by the SARS-CoV-2 virus. As part of U.S. government
efforts to mitigate the introduction, transmission, and spread of
COVID-19, CDC issued the August Order,\6\ replacing a prior order
issued on October 13, 2020 (October Order) which continued a series of
orders issued pursuant to 42 U.S.C. 265, 268 and the implementing
regulation at 42 CFR 71.40,\7\ suspending the right to introduce \8\
certain persons into the United States from countries or places where
the quarantinable communicable disease exists in order to protect the
public health from an increased risk of the introduction of COVID-
19.\9\ The August Order applied specifically to ``covered
noncitizens,'' defined as ``persons traveling from Canada or Mexico
(regardless of their country of origin) who would otherwise be
introduced into a congregate setting in a POE or U.S. Border Patrol
station \10\ at or near the U.S. land and adjacent coastal borders
subject to certain exceptions detailed below; this includes noncitizens
who do not have proper travel documents, noncitizens whose entry is
otherwise contrary to law, and noncitizens who are apprehended at or
near the border seeking to unlawfully enter the United States between
POE.'' \11\
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\5\ Quarantinable communicable diseases are any of the
communicable diseases listed in Executive Order 13295, as provided
under 361 of the Public Health Service Act (42 U.S.C. 264), 42 CFR
71.1. The list of quarantinable communicable diseases currently
includes cholera, diphtheria, infectious tuberculosis, plague,
smallpox, yellow fever, viral hemorrhagic fevers (Lassa, Marburg,
Ebola, Crimean-Congo, South American, and others not yet isolated or
named), severe acute respiratory syndromes (including Middle East
Respiratory Syndrome and COVID-19), influenza caused by novel or
reemergent influenza viruses that are causing, or have the potential
to cause, a pandemic, and measles. See Exec. Order 13295, 68 FR
17255 (Apr. 4, 2003), as amended by Exec. Order 13375, 70 FR 17299
(Apr. 1, 2005) and Exec. Order 13674, 79 FR 45671 (July 31, 2014),
86 FR 52591 (Sep. 22, 2021).
\6\ See supra note 1.
\7\ Order Suspending the Right to Introduce Certain Persons from
Countries Where a Quarantinable Communicable Disease Exists, 85 FR
65806 (Oct. 16, 2020). The October Order replaced the Order
Suspending Introduction of Certain Persons from Countries Where a
Communicable Disease Exists, issued on March 20, 2020 (March Order),
which was subsequently extended and amended. Notice of Order Under
Sections 362 and 365 of the Public Health Service Act Suspending
Introduction of Certain Persons from Countries Where a Communicable
Disease Exists, 85 FR 17060 (Mar. 26, 2020); Extension of Order
Under Sections 362 and 365 of the Public Health Service Act; Order
Suspending Introduction of Certain Persons From Countries Where a
Communicable Disease Exists, 85 FR 22424 (Apr. 22, 2020); Amendment
and Extension of Order Under Sections 362 and 365 of the Public
Health Service Act; Order Suspending Introduction of Certain Persons
from Countries Where a Communicable Disease Exists, 85 FR 31503 (May
26, 2020).
\8\ Suspension of the right to introduce means to cause the
temporary cessation of the effect of any law, rule, decree, or order
pursuant to which a person might otherwise have the right to be
introduced or seek introduction into the United States. 42 CFR
71.40(b)(5).
\9\ See supra note 2.
\10\ POE and U.S. Border Patrol stations are operated by U.S.
Customs and Border Protection (CBP), an agency within Department of
Homeland Security (DHS).
\11\ 86 FR 42828, 42841.
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Three groups typically make up covered noncitizens--single adults
(SA),\12\ individuals in family units (FMU),\13\ and unaccompanied
noncitizen children (UC).\14\ UC were specifically excepted from the
August Order \15\ based on its explicit incorporation by reference of
CDC's July Exception of UC.\16\ On March 11, 2022, CDC fully terminated
the August Order and all previous orders issued under 42 U.S.C. 265,
268 and 42 CFR 71.40 with respect to UC. This termination with respect
to UC was based on a thorough determination of the current status of
the COVID-19 pandemic as well as an analysis of the specific care
available to UC \17\ and the absence of legitimate countervailing
reliance interests, and was prioritized ahead of CDC's reassessment for
SA and FMU in light of the entry of a preliminary injunction by the
U.S. District Court for the Northern District of Texas that was to go
into effect on March 11, 2022, enjoining CDC from excepting UC from the
August Order based solely on their status as UC.\18\
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\12\ A single adult (SA) is any noncitizen adult 18 years or
older who is not an individual in a ``family unit.'' 86 FR 42828,
42830 at note 13.
\13\ An individual in a family unit (FMU) includes any
individual in a group of two or more noncitizens consisting of a
minor or minors accompanied by their adult parent(s) or legal
guardian(s). Id. at note 14.
\14\ CDC understands UC to be a class of individuals similar to
or the same as those individuals who would be considered
``unaccompanied alien children'' (see 6 U.S.C. 279) for purposes of
HHS Office of Refugee Resettlement custody, were DHS to make the
necessary immigration determinations under Title 8 of the U.S. Code.
86 FR 38717, 38718 at note 4.
\15\ 86 FR 42828, 42829 at note 3.
\16\ See supra note 4.
\17\ While SA, FMU, and UC are all processed by U.S. Customs and
Border Protection (CBP), a component of DHS, following that initial
intake, UC are referred to HHS' Office of Refugee Resettlement (ORR)
for care. See 86 FR 42828, 42835-37 (describing the processing of
noncitizen SA and FMU by DHS components, CBP and Immigration and
Customs Enforcement (ICE), under both regular Title 8 immigration
and under an order pursuant to 42 U.S.C. 265). At both the CBP and
ORR stages, UC receive special attention. This care and the distinct
immigration processing available to UC compared to SA and FMU
provided the basis for the exception of UC in the July Exception and
the August Order. See 86 FR 42828, 42835-37 (describing the
processing of noncitizen SA and FMU by DHS components, CBP and ICE,
under both regular Title 8 immigration and under an order pursuant
to 42 U.S.C. 265); see also 87 FR 15243, 15246-47 (Mar. 17, 2022)
(describing the different COVID-19 mitigation measures applied where
UC are processed).
\18\ Texas v. Biden, No. 4:21-cv-0579-P, 2022 WL 658579, at *16-
18 (N.D. Tex. Mar. 4, 2022).
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The CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR 71.40
were intended to reduce the risk of COVID-19 introduction,
transmission, and spread at POE and U.S. Border Patrol stations by
significantly reducing the number and density of covered noncitizens
held in these congregate settings, thereby reducing risks to U.S.
citizens, U.S. nationals, lawful permanent residents, DHS and U.S.
Customs and Border Protection (CBP) personnel and noncitizens at the
facilities, and local healthcare systems. The measures included in the
CDC Orders were deemed necessary for the protection of public health.
In the August Order, CDC committed to reassessing the public health
circumstances necessitating the Order at least every 60 days by
reviewing the latest information regarding the status of the COVID-19
public health emergency and associated public health risks, including
migration patterns, sanitation concerns, and any improvement or
deterioration of conditions at the U.S. borders.\19\ CDC conducted its
most recent reassessment on January 28, 2022; in addition, a
reassessment specific to UC was completed on March 11, 2022. The
instant Public Health Determination and Termination considers the
current status of the

[[Page 19944]]

pandemic, including the receding numbers of COVID-19 cases,
hospitalizations, and deaths most recently related to the Omicron
variant, and constitutes the reassessment concluding on March 30, 2022.
This Determination and Termination also reflects the recent issuance of
CDC's COVID-19 Community Levels framework.\20\ Additionally, the
National COVID-19 Preparedness Plan was recently updated to provide a
roadmap to help the nation continue fighting COVID-19, while also
allowing resumption of more normal routines.\21\
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\19\ 86 FR 42828, 42841.
\20\ COVID-19 Community Levels, Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html">https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html</a> (updated Mar. 24, 2022); see infra I.B.1.
\21\ National COVID-19 Preparedness Plan--March 2022, available
at <a href="https://www.whitehouse.gov/wp-content/uploads/2022/03/NAT-COVID-19-PREPAREDNESS-PLAN.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/03/NAT-COVID-19-PREPAREDNESS-PLAN.pdf</a> (last visited Mar. 30, 2022).
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Based on the analysis below, the CDC Director finds that, pursuant
to 42 U.S.C. 265 and 42 CFR 71.40, there is no longer a serious danger
that the entry of covered noncitizens, as defined by the August Order,
into the United States will result in the introduction, transmission,
and spread of COVID-19 and that a suspension of the introduction of
covered noncitizens is no longer required in the interest of public
health. While the introduction, transmission, and spread of COVID-19
into the United States is likely to continue to some degree, the cross-
border spread of COVID-19 due to covered noncitizens does not present
the serious danger to public health that it once did, given the range
of mitigation measures now available. CDC continues to stress the need
for robust COVID-19 mitigation measures at the border, including
vaccination and continued masking in congregate settings. CDC has
determined that the extraordinary measure of an order under 42 U.S.C.
265 is no longer necessary, particularly in light of less burdensome
measures that are now available to mitigate the introduction,
transmission, and spread of COVID-19. Therefore, as described below,
CDC is terminating the August Order and all related prior orders issued
pursuant to 42 U.S.C. 265, 268 and 42 CFR 71.40. This Termination will
be implemented on May 23, 2022, to enable DHS to implement appropriate
COVID-19 protocols, such as scaling up a program to offer COVID-19
vaccinations to migrants, and prepare for full resumption of regular
migration under Title 8 authorities.

A. Evolution of the COVID-19 Pandemic and the U.S. Government Response

Since late 2019, SARS-CoV-2, the virus that causes COVID-19, has
spread throughout the world, resulting in a pandemic. As of March 30,
2022, there have been over 480 million confirmed cases of COVID-19
globally, resulting in over six million deaths.\22\ The United States
has reported over 79 million cases resulting in over 975,000 deaths due
to the disease \23\ and is currently averaging around 26,000 new cases
of COVID-19 a day as of March 28, 2022.\24\
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\22\ Coronavirus disease (COVID-19) pandemic, World Health
Organization, <a href="https://covid19.who.int/">https://covid19.who.int/</a> (last visited Mar. 30, 2022).
\23\ COVID Data Tracker, Centers for Disease Control and
Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#datatracker-home">https://covid.cdc.gov/covid-data-tracker/#datatracker-home</a> (last visited Mar. 30, 2022).
\24\ See Trends in Number of COVID-19 Cases and Deaths in the US
Reported to CDC, by State/Territory, Centers for Disease Control and
Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#trends_dailycases">https://covid.cdc.gov/covid-data-tracker/#trends_dailycases</a>, noting a seven-day moving average of 26,190
cases on March 28, 2022.
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The U.S. government response to the COVID-19 pandemic has focused
on taking actions and providing guidance based on the best available
scientific information. The United States has experienced five waves of
the pandemic, each with its own unique epidemiologic
characteristics.\25\ As the waves of COVID-19 cases have surged and
ebbed, so too have actions taken in response to the pandemic. Earlier
phases of the pandemic required extraordinary actions by the U.S.
government and society at large. However, epidemiologic data,
scientific knowledge, and the availability of public health mitigation
measures, vaccines, and therapeutics have permitted many of those early
actions to be relaxed in favor of more nuanced, targeted, and narrowly
tailored guidance that provides a less burdensome means of preventing
and controlling the SARS-CoV-2 virus and COVID-19. Of note for this
Determination are the multiple travel- and migration-related measures
taken by the U.S. government in each phase.
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\25\ Supra note 21.
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1. First Wave--January to June 2020
SARS-CoV-2 was first identified as the cause of an outbreak of
respiratory illness that began in Wuhan, Hubei Province, People's
Republic of China.\26\ The United States reported its first COVID-19
case on January 21, 2020,\27\ and the HHS Secretary declared COVID-19 a
public health emergency on January 31, 2020.\28\ Community transmission
was detected in the United States in February 2020.\29\ COVID-19 cases
initially spread in a small number of U.S. metropolitan areas, most
notably in New York City and surrounding areas.\30\ The resulting first
wave of the pandemic peaked in the United States on April 7, 2020, with
two million cases (3% of cumulative cases) and over 127,000 deaths (13%
of cumulative deaths).\31\ During this period, public health officials
monitored the situation closely and began instituting community-level
nonpharmaceutical interventions such as school closures and physical
distancing, in addition to promoting respiratory and hand hygiene
practices.\32\ Vaccines and approved therapeutics were not available
during this time.\33\
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\26\ Patel A, Jernigan DB. Initial Public Health Response and
Interim Clinical Guidance for the 2019 Novel Coronavirus Outbreak--
United States, December 31, 2019-February 4, 2020. MMWR Morb Mortal
Wkly Rep 2020;69:140-146. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6905e1">http://dx.doi.org/10.15585/mmwr.mm6905e1</a>.
\27\ Id.
\28\ Determination that a Public Health Emergency Exists, U.S.
Department of Health and Human Services (Jan. 31, 2020), <a href="https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx">https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx</a>
(last visited Mar. 30, 2022).
\29\ Geographic Differences in COVID-19 Cases, Deaths, and
Incidence--United States, February 12-April 7, 2020. MMWR Morb
Mortal Wkly Rep 2020;69:465-471. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6915e4">http://dx.doi.org/10.15585/mmwr.mm6915e4</a>.
\30\ Id.
\31\ Case notifications from state, local and territorial public
health jurisdictions, Centers for Disease Control and Prevention,
<a href="https://data.cdc.gov/Case-Surveillance/COVID-19-Case-Surveillance-Public-Use-Data/vbim-akqf">https://data.cdc.gov/Case-Surveillance/COVID-19-Case-Surveillance-Public-Use-Data/vbim-akqf</a>, (last accessed Mar. 30, 2022);
Provisional COVID-19 Death Counts by Week Ending Date and State,
Centers for Disease Control and Prevention, <a href="https://data.cdc.gov/NCHS/Provisional-COVID-19-Death-Counts-by-Week-Ending-D/r8kw-7aab">https://data.cdc.gov/NCHS/Provisional-COVID-19-Death-Counts-by-Week-Ending-D/r8kw-7aab</a>
(last accessed Mar. 30, 2022); COVID-19 Reported Patient Impact and
Hospital Capacity by State Timeseries, Unified Hospital Analytic,
<a href="https://healthdata.gov/Hospital/COVID-19-Reported-Patient-Impact-and-Hospital-Capa/g62h-syeh">https://healthdata.gov/Hospital/COVID-19-Reported-Patient-Impact-and-Hospital-Capa/g62h-syeh</a> (last accessed Mar. 30, 2022).
\32\ Jernigan DB. Update: Public Health Response to the
Coronavirus Disease 2019 Outbreak--United States, February 24, 2020.
MMWR Morb Mortal Wkly Rep 2020;69:216-219. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6908e1">http://dx.doi.org/10.15585/mmwr.mm6908e1</a>.
\33\ Id.
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As public health officials learned more about the epidemiology of
SARS-CoV-2, the U.S. government, state and local health departments,
and other partners implemented aggressive measures to slow transmission
of the virus in the United States.\34\ Many of the mitigation actions
taken by the U.S. government during this wave involved travel and
migration. The President issued a series of actions limiting entry into
the United States, including proclamations suspending entry into the
country of immigrants or nonimmigrants who were physically present
within certain countries during the 14-day period preceding their entry

[[Page 19945]]

or attempted entry,\35\ and Canada and Mexico joined the United States
in temporarily restricting travelers across land borders for non-
essential purposes.\36\ CDC began screening travelers from certain
countries at airports and issued several travel health notices \37\
and, following a series of COVID-19 outbreaks on cruise ships, issued a
No Sail Order and Suspension of Further Embarkation.\38\
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\34\ See supra note 26.
\35\ See Proclamation 9984 (Jan. 31, 2020), 85 FR 6709 (Feb. 5,
2020) (regarding the People's Republic of China); Proclamation 9992
(Feb. 28, 2020), 85 FR 12855 (Mar. 4, 2020) (regarding the Republic
of Iran); Proclamation 9993 (Mar. 11, 2020), 85 FR 15045 (Mar. 16,
2020) (regarding the Schengen Area of Europe); Proclamation 9996
(Mar. 14, 2020), 85 FR 15341 (Mar. 18, 2020) (regarding the United
Kingdom and Republic of Ireland); and Proclamation 10041, as amended
by Proclamation 10042 (May 24, 2020), 85 FR 31933 (May 28, 2020)
(regarding the Federative Republic of Brazil).
\36\ See 85 FR 16547 (Mar. 24, 2020); 85 FR 16548 (Mar. 24,
2020).
\37\ Supra note 32; see also CDC Advises Travelers to Avoid All
Nonessential Travel to China, Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/media/releases/2020/s0128-travelers-avoid-china.html">https://www.cdc.gov/media/releases/2020/s0128-travelers-avoid-china.html</a> (Jan. 28, 2020), advising travelers to avoid all
nonessential travel to countries with known viral spread.
\38\ 85 FR 16628 (Mar. 24, 2020); extended 85 FR 21004 (Apr. 15,
2020); see also Moriarty LF, Plucinski MM, Marston BJ, et al. Public
Health Responses to COVID-19 Outbreaks on Cruise Ships--Worldwide,
February-March 2020. MMWR Morb Mortal Wkly Rep 2020;69:347-352. DOI:
<a href="http://dx.doi.org/10.15585/mmwr.mm6912e3">http://dx.doi.org/10.15585/mmwr.mm6912e3</a>.
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It was in the context of this initial wave of the pandemic and
travel- and migration-related actions that the CDC Director promulgated
an interim final rule at 42 CFR 71.40 implementing his authority under
42 U.S.C. 265, 268 \39\ and issued an Order under the interim final
rule suspending the introduction of certain ``covered aliens'' on March
20, 2020 (March Order).\40\ The March Order sought to avert the serious
danger of the introduction of COVID-19 into the land POEs and Border
Patrol stations at or near the United States borders with Canada and
Mexico due to encountered noncitizens otherwise being held in the
common areas of the facilities and in close proximity to one another as
they undergo immigration processing. The March Order applied to SA,
FMU, and UC and was subsequently amended and extended in April and May
2020.\41\
---------------------------------------------------------------------------

\39\ See 85 FR 16559 (Mar. 24, 2020).
\40\ See 85 FR 17060 (Mar. 26, 2020).
\41\ See supra note 7.
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2. Second Wave--June to August 2020
During the second wave of the pandemic, from approximately June to
August 2020, COVID-19 spread geographically throughout the United
States.\42\ Case numbers peaked on July 14, 2020, and in total the
second wave resulted in approximately 2.6 million COVID-19 cases (4% of
cumulative cases) and over 75,000 deaths (4% of cumulative deaths).
During the second wave, public health officials and scientists learned
more about COVID-19 transmission, including asymptomatic
transmission,\43\ particularly in congregate, high-density settings,
such as meat-packing plants and correctional facilities.\44\ The
medical community learned more about potential effects of COVID-19 on
specific populations, such as pregnant people,\45\ the elderly, and
immunocompromised people. In July 2020, CDC announced that cloth face
coverings (masks) are a critical public health tool in reducing the
spread of COVID-19, particularly when used universally within
communities.\46\ As stay-at-home orders issued during the first wave
were lifted, CDC continued to promote broad implementation of masking
and face covering requirements.\47\ One pivotal marker of the second
wave was the creation of Operation Warp Speed, a partnership between
the HHS and Department of Defense (DOD) aimed to help accelerate the
development of a COVID-19 vaccine.\48\
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\42\ Oster AM, Kang GJ, Cha AE, et al. Trends in Number and
Distribution of COVID-19 Hotspot Counties--United States, March 8-
July 15, 2020. MMWR Morb Mortal Wkly Rep 2020;69:1127-1132. DOI:
<a href="http://dx.doi.org/10.15585/mmwr.mm6933e2">http://dx.doi.org/10.15585/mmwr.mm6933e2</a>.
\43\ Payne DC, Smith-Jeffcoat SE, Nowak G, et al. SARS-CoV-2
Infections and Serologic Responses from a Sample of U.S. Navy
Service Members--USS Theodore Roosevelt, April 2020. MMWR Morb
Mortal Wkly Rep 2020;69:714-721. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6923e4">http://dx.doi.org/10.15585/mmwr.mm6923e4</a>.
\44\ Dyal JW, Grant MP, Broadwater K, et al. COVID-19 Among
Workers in Meat and Poultry Processing Facilities--19 States, April
2020. MMWR Morb Mortal Wkly Rep 2020;69:557-561. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6918e3">http://dx.doi.org/10.15585/mmwr.mm6918e3</a>; see also Hagan LM, Williams SP,
Spaulding AC, et al. Mass Testing for SARS-CoV-2 in 16 Prisons and
Jails--Six Jurisdictions, United States, April-May 2020. MMWR Morb
Mortal Wkly Rep 2020;69:1139-1143. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6933a3">http://dx.doi.org/10.15585/mmwr.mm6933a3</a>; Njuguna H, Wallace M, Simonson S, et al. Serial
Laboratory Testing for SARS-CoV-2 Infection Among Incarcerated and
Detained Persons in a Correctional and Detention Facility--
Louisiana, April-May 2020. MMWR Morb Mortal Wkly Rep 2020;69:836-
840. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6926e2">http://dx.doi.org/10.15585/mmwr.mm6926e2</a>.
\45\ Ellington S, Strid P, Tong VT, et al. Characteristics of
Women of Reproductive Age with Laboratory-Confirmed SARS-CoV-2
Infection by Pregnancy Status--United States, January 22-June 7,
2020. MMWR Morb Mortal Wkly Rep 2020;69:769-775. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6925a1">http://dx.doi.org/10.15585/mmwr.mm6925a1</a>.
\46\ CDC calls on Americans to wear masks to prevent COVID-19
spread (press release), Centers for Disease Control and Prevention,
<a href="https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html">https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html</a> (Jul. 14, 2020) (noting the growing body of evidence
supporting cloth face coverings as a source control to help prevent
the person wearing the mask from spreading COVID-19 to others; the
main protection individuals gain from masking occurs when others in
their communities also wear face coverings).
\47\ Hendrix MJ, Walde C, Findley K, Trotman R. Absence of
Apparent Transmission of SARS-CoV-2 from Two Stylists After Exposure
at a Hair Salon with a Universal Face Covering Policy--Springfield,
Missouri, May 2020. MMWR Morb Mortal Wkly Rep 2020;69:930-932. DOI:
<a href="http://dx.doi.org/10.15585/mmwr.mm6928e2">http://dx.doi.org/10.15585/mmwr.mm6928e2</a>.
\48\ Operation Warp Speed: Accelerated COVID-19 Vaccine
Development Status and Efforts to Address Manufacturing Challenges,
Government Accountability Office, <a href="https://www.gao.gov/products/gao-21-319">https://www.gao.gov/products/gao-21-319</a> (Feb. 11, 2021).
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As concerns about asymptomatic transmission grew and vaccines and
therapeutics were still being developed, the U.S. government continued
to take steps to protect the public health. CDC extended the No Sail
Order and Suspension of Further Embarkation for cruise ships \49\ and,
as the second wave was being replaced by the third, issued an Order
temporarily halting evictions in the United States due to the potential
for accelerated transmission in congregate settings such as shelters
for displaced persons.\50\ The CDC Order under 42 U.S.C. 265, 268 and
42 CFR 71.40 issued in March 2020 and amended and extended in April and
May 2020, continued to be in place throughout this period.
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\49\ See 85 FR 44085 (July 21, 2020).
\50\ See 85 FR 55292 (Sept. 4, 2020). The CDC Director
subsequently renewed the ``eviction moratorium'' Order until March
31, 2021 (86 FR 8020 (Feb. 3, 2021)), then modified and extended the
Order until June 30, 2021 (86 FR 16731 (Mar. 31, 2021)) and extended
the Order until July 31, 2021 (86 FR 34010 (Jun. 28, 2021)). On
August 3, 2021, the CDC Director announced a new Order to
temporarily halt residential evictions in communities with
substantial or high transmission of COVID-19 to prevent the further
spread of COVID-19 (86 FR 43244 (Aug. 6, 2021)).
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3. Third Wave--Alpha Variant--September 2020 to May 2021
COVID-19 variants, including the B.1.1.7 (Alpha) variant, emerged
in the fall of 2020, heralding the third wave of the pandemic \51\ and
resulting in 22.5 million COVID-19 cases (34% of cumulative cases) and
over 398,000 deaths (21% of cumulative deaths) in the United
States.\52\ The third wave lasted from approximately September 2020 to
May 2021 and coincided with the initial availability of vaccines for
COVID-19 \53\ and increased availability

[[Page 19946]]

of therapeutics.\54\ Even as the third wave began to ebb, however, a
new variant--B.1.617.2 (Delta)--began circulating in India and other
countries.
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\51\ Science Brief: Emerging SARS-CoV-2 Variants--Updated,
Centers for Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/scientific-brief-emerging-variants.html">https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/scientific-brief-emerging-variants.html</a> (updated Jan. 28, 2021).
\52\ Per internal CDC calculations.
\53\ COVID-19 vaccines were initially available only for those
persons with higher risk of COVID-19, such as immunocompromised
individuals and healthcare workers, but access was subsequently
expanded to the general population aged 16 years and older. The U.S.
Food and Drug Administration (FDA) issued emergency use
authorizations for three COVID-19 vaccines: Two mRNA vaccines
(produced by Pfizer-BioNTech and Moderna) and one viral vector
vaccine (produced by Johnson & Johnson/Janssen); see generally
<a href="https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization#coviddrugs">https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization#coviddrugs</a>; Dooling K, McClung N, Chamberland M, et
al. The Advisory Committee on Immunization Practices' Interim
Recommendation for Allocating Initial Supplies of COVID-19 Vaccine--
United States, 2020. MMWR Morb Mortal Wkly Rep 2020;69:1857-1859.
DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm6949e1">http://dx.doi.org/10.15585/mmwr.mm6949e1</a>. In May 2021,
adolescents 12 to 15 years old became eligible to receive COVID-19
vaccines. Wallace M, Woodworth KR, Gargano JW, et al. The Advisory
Committee on Immunization Practices' Interim Recommendation for Use
of Pfizer-BioNTech COVID-19 Vaccine in Adolescents Aged 12-15
Years--United States, May 2021. MMWR Morb Mortal Wkly Rep
2021;70:749-752. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm7020e1">http://dx.doi.org/10.15585/mmwr.mm7020e1</a>.
\54\ U.S. Food and Drug Administration, Emergency Use
Authorization, <a href="https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization#coviddrugs">https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization#coviddrugs</a> (last accessed Mar. 30, 2022).
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The U.S. government responded to the Alpha variant and resulting
surge in cases with additional travel- and migration-related
restrictions, beginning with a requirement for air passengers from the
United Kingdom (where the Alpha variant was first identified) to
present a negative COVID-19 test result before boarding a flight to the
United States; \55\ CDC subsequently expanded the predeparture testing
requirement to air passengers departing to the United States from any
foreign country.\56\ Due to the inherent risk of transmission of COVID-
19 in the travel context,\57\ CDC also issued an Order requiring face
masks to be worn while on conveyances traveling into, within, or out of
the United States and at U.S. transportation hubs.\58\ Based on
developments with respect to variants and the continued spread of
COVID-19, the U.S. government expanded the list of countries from which
entry into the United States was limited.\59\ CDC also announced a
Conditional Sailing Order framework under which cruise ships could
resume passenger operations only after meeting stringent public health
mitigation measures, such as frequent testing of crew members.\60\
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\55\ CDC to Require Negative COVID-19 Test for Air Travelers
from the United Kingdom to the U.S., Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/media/releases/2020/s1224-CDC-to-require-negative-test.html">https://www.cdc.gov/media/releases/2020/s1224-CDC-to-require-negative-test.html</a> (Dec. 24, 2020).
\56\ See 86 FR 7387 (Jan. 26, 2021).
\57\ CDC has issued orders and guidance focusing on the ``travel
context,'' which encompasses both conveyances and transportation
hubs, because these are locations where large numbers of people may
gather and physical distancing can be difficult. Furthermore, many
people need to take public transportation for their livelihoods.
Passengers (including young children) may be unvaccinated and some
on board, including personnel operating the conveyances or working
at the transportation hub, may have underlying health conditions
that cause them to be at increased risk of severe illness (i.e.,
those who might not be protected by vaccination because of weakened
immune systems). Such people may not have the option to disembark or
relocate to another area of the conveyance. Transportation hubs are
also places where people depart to different geographic locations,
both across the United States and around the world. Therefore, an
exposure in a transportation hub can have consequences to many
destination communities if people become infected after they travel.
See Requirement for Face Masks on Public Transportation Conveyances
and at Transportation Hubs, Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html">https://www.cdc.gov/coronavirus/2019-ncov/travelers/face-masks-public-transportation.html</a> (updated Feb. 25, 2022).
\58\ Id.
\59\ This included restrictions and suspension of entry of
noncitizens (immigrants and nonimmigrants) who were present within
the European Schengen Area, the United Kingdom (excluding overseas
territories outside of Europe), the Republic of Ireland, the
Federative Republic of Brazil, the Republic of South Africa, and the
Republic of India in the 14-day period prior to attempted entry. See
Proclamation 10143 (Jan. 25, 2021), 86 FR 7467 (Jan. 28, 2021)
(regarding the Schengen Area of Europe, the United Kingdom, the
Republic of Ireland, the Federative Republic of Brazil, and the
Republic of South Africa); Proclamation 10199 (Apr. 30, 2021), 86 FR
24297 (May 6, 2021) (regarding the Republic of India).
\60\ See 86 FR 59720 (Oct. 28, 2021). The Order was extended in
April, May, and October 2021.
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In October 2020, following the promulgation of the Final Rule for
42 CFR 71.40,\61\ CDC published a new Order under 42 U.S.C. 265 and 268
and the regulation suspending the right to introduce certain covered
persons into the United States.\62\ As with all prior CDC Orders, the
October Order applied to ``covered aliens,'' which included certain SA,
FMU, and UC seeking entry into the United States without valid travel
documents and provided certain exceptions, including a case-by-case
exception to be applied by CBP officers with supervisor approval upon a
determination that an individual should be excepted from application of
the Order based on the totality of the circumstances, including
consideration of significant law enforcement, officer and public
safety, humanitarian, and public health interests. The October Order
was the subject of litigation regarding its application to both FMU and
UC.\63\
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\61\ See 85 FR 56424 (Sept. 11, 2020).
\62\ Order Suspending the Right to Introduce Certain Persons
from Countries Where a Quarantinable Communicable Disease Exists, 85
FR 65806 (Oct. 16, 2020).
\63\ For example, on November 18, 2020, the United States
District Court for the District of Columbia preliminarily enjoined
the U.S. government from expelling UC pursuant to the October 2020
Order. PJES v. Mayorkas, No. 1:20-cv-02245 (D.D.C.), Dkt. Nos. 79-
80. While prohibited from expelling UC, the U.S. government worked
to create solutions for the appropriate care of UC pursuant to
regular immigration authorities. On Friday, January 29, 2021, the
United States Court of Appeals for the District of Columbia Circuit
granted a stay pending appeal of the District Court's preliminary
injunction (PJES v. Mayorkas, No. 20-5357, Doc. No. 1882899),
thereby permitting CDC and DHS to resume enforcement of the October
Order and immediately expel UC. On January 30, 2021, CDC exercised
its discretion to temporarily except UC from expulsion pending the
outcome of its public health reassessment of the October Order. See
86 FR 9942 (Feb. 17, 2021).
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4. Fourth Wave--Delta Variant--June to October 2021
The COVID-19 pandemic's fourth wave lasted from June to October
2021 and was characterized by the spread of the Delta variant in the
United States; during this period the United States experienced 9.8
million cases (15% of cumulative cases) and over 179,000 deaths (9% of
cumulative deaths).\64\ Vaccines were widely available during the
fourth wave and uptake rose slightly throughout this period.\65\
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\64\ Per internal CDC calculations.
\65\ Trends in Number of COVID-19 Vaccinations in the US,
Centers for Disease Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#vaccination-trends">https://covid.cdc.gov/covid-data-tracker/#vaccination-trends</a> (last updated Mar. 29, 2022).
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Given the predictable global spread of the virus, the effectiveness
of COVID-19 vaccines, and the rising availability of COVID-19 vaccines
globally, and recognizing the need to allow the domestic and global
economy to continue recovering from the effects of the pandemic, the
President issued a Proclamation reflecting the United States' desire to
move away from the country-by-country restrictions previously applied
during the COVID-19 pandemic and to adopt an air travel policy that
relies primarily on vaccination to advance the safe resumption of
international air travel to the United States.\66\ The Proclamation was
followed by a suite of travel-related mitigation measures.\67\ Even as
available

[[Page 19947]]

mitigation measures allowed the U.S. government to shift its pandemic
approach in the travel context, the country continued to see a surge in
COVID-19 cases caused by the Delta variant necessitating different
measures in non-travel contexts. For example, as a result, the CDC
Director extended the aforementioned eviction moratorium \68\ for
persons in counties experiencing substantial or high rates of
transmission.\69\
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\66\ See Proclamation 10294 (Oct. 25, 2021), 86 FR 59603 (Oct.
28, 2021) (terminating the suspension of entry into the United
States regarding the People's Republic of China, the Republic of
Iran, the Schengen Area of Europe, the United Kingdom and Republic
of Ireland, the Federative Republic of Brazil, the Republic of South
Africa, and the Republic of India).
\67\ Including amending the Requirement for Proof of Negative
COVID-19 Test or Recovery from COVID-19 for All Air Passengers
Arriving in the United States (<a href="https://www.cdc.gov/quarantine/fr-proof-negative-test.html">https://www.cdc.gov/quarantine/fr-proof-negative-test.html</a>) to shorten the time window for
predeparture testing to one day for air passengers who were not
fully vaccinated against COVID-19; Order Requiring Airlines to
Collect Contact Information for All Passengers Arriving into the
United States (<a href="https://www.cdc.gov/quarantine/order-collect-contact-info.html">https://www.cdc.gov/quarantine/order-collect-contact-info.html</a>), and the Order Implementing Presidential Proclamation on
Safe Resumption of Global Travel During the COVID-19 Pandemic, which
required all non-U.S.-citizen, non-immigrants, with limited
exceptions, traveling to the United States by air to be fully
vaccinated against COVID-19 and show proof of vaccination (<a href="https://www.cdc.gov/quarantine/order-safe-travel.html">https://www.cdc.gov/quarantine/order-safe-travel.html</a>).
\68\ See 85 FR 55292 (Sept. 4, 2020).
\69\ See 86 FR 43244 (Aug. 6, 2021).
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During the fourth wave, CDC also issued the July Exception
excepting UC from the October 2020 Order, which followed CDC's decision
in January 2021 to temporarily except UC from expulsion pending a
public health reassessment of the October Order.\70\ The October 2020
Order was subsequently replaced by the August Order under 42 U.S.C. 265
and 268 and 42 CFR 71.40, which fully incorporated the July Exception.
The August Order explained why the mitigation measures specific to UC
and discussed in the July Exception were not available to SA and FMU
and, thus, why the August Order applied only to SA and FMU.\71\ As with
many of the other actions taken by the U.S. government during this
wave, the August Order was predicated, in part, on the significant
increase in community transmission levels brought forth by the Delta
variant.
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\70\ See supra note 63.
\71\ 86 FR 42828, 42837-38.
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5. Fifth Wave--Omicron Variant--November 2021 to March 2022
The highly infectious SARS-CoV-2 variant B.1.1.529 (Omicron) is
responsible for the currently receding fifth wave of the pandemic. The
fifth wave resulted in an extraordinary and unparalleled increase in
COVID-19 cases around the world.\72\ Although the emergence of the
Omicron variant resulted in the highest reported numbers of cases and
hospitalizations during the pandemic, disease severity indicators,
including hospital length of stay, intensive care unit admissions, and
deaths, remained lower than during previous pandemic waves.\73\ As a
result of the Omicron surge, the United States experienced almost 24
million cases (36% of cumulative cases); given this volume of cases,
however, the resulting number of deaths in the United States (163,000
deaths, or 9% of cumulative deaths) was comparatively small.\74\
Vaccination efforts continued across the country during this fifth wave
and were expanded to include children aged 5 to 11 years.\75\ Despite
breakthrough cases due to Omicron, vaccines continued to provide
substantial protection against severe illness, hospitalizations, and
deaths due to COVID-19.\76\
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\72\ Omicron was first reported to the World Health Organization
(WHO) by South Africa on November 24, 2021; on November 26, 2021,
WHO designated it a Variant of Concern (VOC). On November 30, 2021,
the U.S. also decided to classify Omicron as a VOC. This decision
was based on a number of factors, including detection of cases
attributed to Omicron in multiple countries, even among persons
without travel history, transmission and replacement of Delta as the
predominant variant in South Africa, changes in the spike protein of
the virus, and concerns about potential decreased effectiveness of
vaccination and treatments.
\73\ Iuliano AD, Brunkard JM, Boehmer TK, et al. Trends in
Disease Severity and Health Care Utilization During the Early
Omicron Variant Period Compared with Previous SARS-CoV-2 High
Transmission Periods--United States, December 2020-January 2022.
MMWR Morb Mortal Wkly Rep. ePub: 25 January 2022. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm7104e4">http://dx.doi.org/10.15585/mmwr.mm7104e4</a>; see also supra note 26.
\74\ Per internal CDC calculations.
\75\ Woodworth KR, Moulia D, Collins JP, et al. The Advisory
Committee on Immunization Practices' Interim Recommendation for Use
of Pfizer-BioNTech COVID-19 Vaccine in Children Aged 5-11 Years--
United States, November 2021. MMWR Morb Mortal Wkly Rep
2021;70:1579-1583. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm7045e1">http://dx.doi.org/10.15585/mmwr.mm7045e1</a>.
\76\ Omicron Variant: What You Need to Know, Centers for Disease
Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html</a> (updated Feb. 2, 2022). See also
Tenforde MW, Self WH, Gaglani M, et al. Effectiveness of mRNA
Vaccination in Preventing COVID-19-Associated Invasive Mechanical
Ventilation and Death--United States, March 2021-January 2022. MMWR
Morb Mortal Wkly Rep. ePub: 18 March 2022. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm7112e1">http://dx.doi.org/10.15585/mmwr.mm7112e1</a>.
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Although the COVID-19 public health emergency continues,\77\
scientific understanding about the epidemiology of COVID-19 and its
variants as well as the effectiveness of pharmaceuticals and
nonpharmaceutical interventions have substantially expanded, allowing
the U.S. government and CDC to transition to a more narrowly tailored
set of tools to prevent and control the spread of the SARS-CoV-2 virus
and COVID-19. The U.S. government continues to pivot away from country-
specific measures. Following the temporary issuance of country-based
restrictions as Omicron emerged,\78\ all country-based restrictions
were later lifted by the President, as recommended by CDC.\79\ Based on
an increasing body of evidence, CDC recommended that everyone be
vaccinated and remain up to date with vaccines, including boosters for
those eligible.\80\ As more information about the Omicron variant and
vaccine effectiveness became available, CDC calibrated its mitigation
measures in accordance with the epidemiology of the virus and the
different characteristics of the predominant variants. This included
shortening the recommended duration of quarantine and isolation for
most members of the general public in community settings \81\ and also
shortening the timeframe for its COVID-19 testing requirements for all
air passengers boarding flights to the United States.\82\ DHS also
required that all inbound non-citizen, non-lawful permanent residents
traveling to the United States via land POE--whether for essential or
non-essential reasons--must provide proof of full COVID-19 vaccination
status upon request.\83\ These refinements in policy reflect CDC's
increased understanding of the science and its desire to tailor
mitigation measures so that they are no more burdensome than necessary.
The ability of CDC to be responsive to the public health landscape and
adjust such

[[Page 19948]]

measures up and down is critical to successfully fighting the pandemic.
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\77\ The public health emergency determination has been renewed
by the Secretary of HHS at 90-day intervals since January 2020, most
recently on January 14, 2022. See Renewal of Determination That A
Public Health Emergency Exists, Office of the Assistant Secretary
for Preparedness and Response, <a href="https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx">https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx</a> (last visited Mar. 9. 2022).
\78\ Those restrictions included suspending entry into the
United States of immigrants or nonimmigrants who were physically
present within eight southern African countries during the 14-day
period preceding their entry or attempted entry into the United
States. See Proclamation 10315 (Nov. 26, 2021), 86 FR 68385 (Dec. 1,
2021).
\79\ See Proclamation 10329 (Dec. 28, 2021), 87 FR 149 (Jan. 3,
2022) (terminating Proclamation 10315 regarding eight southern
African countries).
\80\ A person is considered up to date after receiving all
recommended COVID-19 vaccines, including any booster dose(s) when
eligible, Stay Up to Date with Your Vaccines, Centers for Disease
Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html</a> (issued Jan. 2022, updated Mar. 22,
2022).
\81\ CDC Updates and Shortens Recommended Isolation and
Quarantine Period for General Population, Centers for Disease
Control and Prevention, <a href="https://www.cdc.gov/media/releases/2021/s1227-isolation-quarantine-guidance.html">https://www.cdc.gov/media/releases/2021/s1227-isolation-quarantine-guidance.html</a> (Dec. 27, 2021).
Specifically, the length of isolation period for the general public
was shortened to five days, followed by five days of wearing a well-
fitting mask. See also What We Know About Quarantine and Isolation,
Centers for Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/quarantine-isolation-background.html">https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/quarantine-isolation-background.html</a> (updated Feb. 25, 2022).
\82\ Requirement for Proof of Negative COVID-19 Test or Recovery
from COVID-19 for All Air Passengers Arriving in the United States,
updating COVID-19 testing requirements (available at <a href="https://www.cdc.gov/quarantine/pdf/Amended-Global-Testing-Order_12-02-2021-p.pdf">https://www.cdc.gov/quarantine/pdf/Amended-Global-Testing-Order_12-02-2021-p.pdf</a>). All air passengers two years or older with a flight
departing to the United States from a foreign country starting on
December 6, 2021, are required show a negative COVID-19 viral test
result taken no more than one day before travel, or documentation of
having recovered from COVID-19 in the past 90 days, before they
board their flight. This requirement remains in place.
\83\ See 87 FR 3429 (Jan. 24, 2022) (applying restrictions to
the U.S.-Canada border) and 87 FR 3425 (applying restrictions to the
U.S.-Mexico border).
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During the fifth wave of the pandemic and as specified in the
August Order, CDC reviewed the public health rationale underlying the
need for the Order every 60 days. By the time of the second
reassessment in late November 2021 the public health situation with
respect to COVID-19 was improving. However, the sudden emergence of the
Omicron variant led CDC to find that the August Order continued to be
necessary. Because case numbers remained historically high in January,
CDC's third public health reassessment determined that the need for the
August Order remained.

B. Current Status of the COVID-19 Pandemic

As a result of the Omicron variant, the United States recorded its
highest seven-day moving average number of cases on January 15,
2022.\84\ Following this unprecedented peak, however, the number of
COVID-19 cases in the United States began to rapidly decrease, falling
by over 95% as of March 30, 2022.\85\ After a brief period of continued
increases,\86\ deaths and hospitalizations also reversed course and
began a swift descent.\87\ Even at their peaks, however, the number of
deaths and hospitalizations during Omicron were substantially lower
than would have been expected from previous waves, based on the case
counts. These welcomed changes were due, in part, to widespread
population immunity \88\ and a generally lower overall risk of severe
disease due to the nature of the Omicron variant.
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\84\ See supra note 24, citing a seven-day moving average of
806,324 cases on January 15, 2022 (last updated Mar. 29, 2022).
\85\ Id. (noting a peak of 806,324 seven-day moving average
number of cases to 26,190 seven-day moving average number of cases
on March 29, 2022).
\86\ COVID Data Tracker Weekly Review: Stay Up to Date--
Interpretive Summary for Jan. 28, 2022, Centers for Disease Control
and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/01282022.html">https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/01282022.html</a> (Jan. 28, 2022).
\87\ See New Admissions of Patients with Confirmed COVID-19,
United States, Centers for Disease Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions">https://covid.cdc.gov/covid-data-tracker/#new-hospital-admissions</a> (last
updated Mar. 28, 2022); see also supra note 24, noting a peak of
4,172 seven-day moving average number of deaths declining to 644
seven-day moving average number of deaths on March 29, 2022.
\88\ In addition to vaccine-induced immunity, studies have
consistently shown that infection with SARS-CoV-2 lowers an
individual's risk of subsequent infection and an even lower risk of
hospitalization and death. National estimates of both vaccine- and
infection-induced antibody seroprevalence have been measured among
blood donors; as of December 2021, these measures demonstrated 94.7%
of persons 16 years and older showed antibody seroprevalence for
COVID-19. Science Brief: Indicators for Monitoring COVID-19
Community Levels and Making Public Health Recommendations, Centers
for Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/indicators-monitoring-community-levels.html">https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/indicators-monitoring-community-levels.html</a> (updated Mar. 4, 2022); Nationwide COVID-19 Infection-
and Vaccination-Induced Antibody Seroprevalence (Blood donations),
Centers for Disease Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence">https://covid.cdc.gov/covid-data-tracker/#nationwide-blood-donor-seroprevalence</a> (last
updated Feb. 18, 2022).
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As the overall COVID-19 case count decreases, CDC has observed an
increased percentage of cases due to a newly detected subvariant of
Omicron, BA.2. As of March 24, 2022, the BA.2 subvariant is estimated
to represent approximately 54.9% of sequenced cases in the United
States.\89\ Experts do not expect this subvariant to lead to a large
surge in cases or hospitalizations, due in part to the levels of
immunity provided by other Omicron subvariants (B.1.1.529 and BA.1.1)
and by vaccination. Should COVID-19 cases show signs of potentially
straining the U.S. healthcare system in the future, CDC's Community
COVID-19 Levels framework described below better equips the country to
swiftly respond.
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\89\ Variant Proportions, Centers for Disease Control and
Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#variant-proportions">https://covid.cdc.gov/covid-data-tracker/#variant-proportions</a> (showing data for the week ending March 26, 2022).
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As the waves of the pandemic have surged and ebbed, so too have
actions the U.S. government has taken in response to the pandemic.
While earlier phases of the pandemic required extraordinary actions by
the government and society at large, epidemiologic data, scientific
knowledge, and the availability of public health mitigation measures,
vaccines, and therapeutics have permitted the country to safely
transition to more normal routines.\90\ As part of that transition, CDC
is also shifting to more nuanced and narrowly tailored guidance that
provides a less burdensome means of preventing and controlling the
SARS-CoV-2 virus and COVID-19.
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\90\ Transcript for CDC Media Telebriefing: Update on COVID-19,
Centers for Disease Control and Prevention, <a href="https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html">https://www.cdc.gov/media/releases/2022/t0225-covid-19-update.html</a> (Feb. 25, 2022).
COVID-19 vaccines are highly effective against severe illness and
death. Widespread uptake of these vaccines, coupled with higher
rates of infection-induced immunity at the population level, as well
as the broad availability of mitigation measures and effective
therapeutics have moved the pandemic to a different phase. See also
State of the Union Address, <a href="https://www.whitehouse.gov/state-of-the-union-2022/">https://www.whitehouse.gov/state-of-the-union-2022/</a> (Mar. 1, 2022).
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1. Community COVID-19 Levels
During the first four waves of the pandemic, CDC relied on a
formula to calculate community transmission levels and update COVID-19
prevention strategies.\91\ These indicators reflected the goal of
limiting transmission as vaccine availability increased.\92\ The CDC
Director examined these indicators in conducting the public health
assessment for the August Order.\93\
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\91\ In September 2020, CDC released the Indicators of Community
Transmission framework, which incorporated two metrics to define
community transmission: Total new cases per 100,000 persons in the
past seven days, and percentage of Nucleic Acid Amplification Test
results that are positive during the past seven days. CDC also
encouraged local decision-makers to also assess the following
factors, in addition to levels of SARS-CoV-2, to inform the need for
layered prevention strategies across a range of settings: Health
system capacity, vaccination coverage, capacity for early detection
of increases in COVID-19 cases, and populations at risk for severe
outcomes from COVID-19. See Christie A, Brooks JT, Hicks LA, et al.
Guidance for Implementing COVID-19 Prevention Strategies in the
Context of Varying Community Transmission Levels and Vaccination
Coverage. MMWR Morb Mortal Wkly Rep. ePub: 27 July 2021. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm7030e2">http://dx.doi.org/10.15585/mmwr.mm7030e2</a>.
\92\ Id.
\93\ Supra note 1.
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The COVID-19 pandemic has shifted to a new phase, however, due to
the widespread uptake of highly effective COVID-19 vaccines, the
accrual of high rates of vaccine- and infection-induced immunity at the
population level, and the availability of effective therapeutics,
testing, and masks or respirators.\94\ As a result, CDC released a new
framework in February 2022, ``COVID-19 Community Levels,'' reflecting a
shift in focus from eliminating SARS-CoV-2 transmission toward disease
control and healthcare system protection.\95\ This new framework
examines three currently relevant metrics for each U.S. county: New
COVID-19 hospital admissions per 100,000 population in the past seven
days, the percent of staffed inpatient beds occupied by patients with
COVID-19, and total new COVID-19 cases per 100,000 population in the
past seven days.\96\ CDC determined that data on disease severity and
healthcare system strain complement case rates, and that these data
together are more informative for

[[Page 19949]]

public health recommendations for individual, organizational, and
jurisdictional decisions than data on community transmission rates
alone.\97\ This comprehensive approach to assessing COVID-19 Community
Levels can inform decisions about layered COVID-19 prevention
strategies, including testing and masking to reduce medically
significant disease and limit strain on the healthcare system and other
societal functions.\98\
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\94\ Supra note 88.
\95\ Indicators for Monitoring COVID-19 Community Levels and
Implementing Prevention Strategies, Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/downloads/science/Scientific-Rationale-summary_COVID-19-Community-Levels_2022.02.23.pptx">https://www.cdc.gov/coronavirus/2019-ncov/downloads/science/Scientific-Rationale-summary_COVID-19-Community-Levels_2022.02.23.pptx</a> (Feb. 23, 2022).
\96\ New COVID-19 admissions and the percent of staffed
inpatient beds occupied represent the current potential for strain
on the health system, while data on new cases acts as an early
warning indicator of potential increases in health system strain in
the event of a COVID-19 surge. Community vaccination coverage and
other local information, like early alerts from surveillance, such
as through wastewater or the number of emergency department visits
for COVID-19, when available, can also inform decision making for
health officials and individuals. Supra note 20.
\97\ Supra note 88.
\98\ Id.
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Using these data, the COVID-19 Community Levels for each county are
classified as low, medium, or high. CDC recommends using county COVID-
19 Community Levels to help determine which mitigation measures should
be implemented within a community.\99\ As of March 31, 2022, 94.9% of
U.S. counties are classified at the low COVID-19 Community Level, 4.5%
of U.S. counties are classified at the medium COVID-19 Community Level;
only 0.5% of U.S. counties are classified at the high COVID-19
Community Level.\100\ Furthermore, 97.1% of the U.S. population lives
in counties classified as ``low,'' 2.5% live in counties classified as
``medium,'' and 0.4% live in counties classified as ``high.'' \101\
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\99\ See supra note 20.
\100\ COVID-19 Integrated County View, Centers for Disease
Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels">https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels</a>&null=CommunityLevels (last updated Mar. 31,
2022); see also infra note 152.
\101\ Per internal CDC calculations.
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2. Healthcare Systems and Resources
With the ebb of the fifth wave, the number of new hospital
admissions of patients with confirmed COVID-19 has similarly receded.
Daily new hospitalization admissions peaked with 154,696 daily new
admissions on January 15, 2022. The large number of cases in a very
short time led to a high volume of hospitalizations that strained some
local healthcare systems and, in some instances, impacted care for non-
COVID-19-related concerns.\102\ Despite this high volume of COVID-19
cases and hospitalizations, COVID-19 cases caused by the Omicron
variant were, on average, less severe.\103\
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\102\ Supra note 73.
\103\ Id.
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The observed reduction in severity of COVID-19 cases and ongoing
effective use of pharmaceutical interventions make it possible to
minimize medically significant disease and prevent excessive strain on
the healthcare sector, even with the occurrence of SARS-CoV-2
transmission.\104\ Accordingly, at this stage of the pandemic, data on
disease severity and healthcare system strain complement case rates and
result in a more comprehensive approach to assessing COVID-19 Community
Levels.
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\104\ Supra note 88.
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3. Mitigation Measures
Effective public health mitigation measures have contributed to the
vast majority of the U.S. population living in a county identified by
CDC as having either a ``low'' or ``medium'' COVID-19 Community Level.
In addition to earlier public health measures, such as masking and
physical distancing, the development and widespread deployment of
COVID-19 tests, vaccines, and therapeutics have greatly reduced the
transmission of the virus and severity of the disease throughout the
United States and provided a new understanding of how prevention
measures may be used to minimize the impact of COVID-19 on health and
society.\105\ These measures and the resulting current status of the
COVID-19 pandemic are a major factor in CDC's determination that the
Orders issued under the authorities of 42 U.S.C. 265, 268 and 42 CFR
71.40 suspending the right to introduce certain persons into the United
States are no longer necessary to protect the public health.
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\105\ See COVID Data Tracker Weekly Review: Interpretive Summary
for March 4, 2022, Centers for Disease Control and Prevention,
<a href="https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/03042022.html">https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/03042022.html</a> (Mar. 4, 2022), indicating that the whole
community can be safe only when [everyone] take[s] steps to protect
each other, even when the COVID-19 Community Level is low or medium.
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a. Test Availability
Testing continues to be an essential part of COVID-19 mitigation
due to the potential for asymptomatic and pre-symptomatic transmission.
Compared to earlier in the pandemic, COVID-19 tests are widely
available in the United States. During January 2022, Americans had
access to over 480 million at-home tests in addition to rapid point of
care and laboratory tests.\106\ With the additional testing capacity
available through antigen tests, rapid testing can be implemented to
identify infected persons for isolation and identification of close
contacts for quarantine and testing if indicated.\107\
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\106\ Testing is available for free at 21,500 locations around
the country. See supra note 21.
\107\ See COVID-19 Testing and Diagnostics Working Group (TDWG).
U.S. Department of Health and Human Services, <a href="https://www.hhs.gov/coronavirus/testing/testing-diagnostics-working-group/index.html">https://www.hhs.gov/coronavirus/testing/testing-diagnostics-working-group/index.html</a>
(last visited Mar. 31, 2022) (defining the role of the COVID-19
TDWG, which develops testing-related guidance and provides targeted
investments to expand the available testing supply and maximize
testing capacity).
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Testing is also particularly helpful in congregate settings, where
testing facility residents and personnel can help facilitate early
identification of increased infection rates and prompt mitigation
actions to help avoid strain on facility operations.\108\ CDC
recommends broad use of COVID-19 tests among facility workforces and
within the larger community; such workforce testing may decrease the
necessity for testing residents in congregate settings.
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\108\ Interim Guidance on Management of Coronavirus Disease 2019
(COVID-19) in Correctional and Detention Facilities, Centers for
Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html#Strategies">https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html#Strategies</a> (updated Feb. 15, 2022).
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b. Vaccines and Boosters
Since August 2021, the scientific community has made significant
strides in the development and distribution of COVID-19 vaccines,
including booster shots. When the August Order was issued, three COVID-
19 vaccines were authorized by the U.S. Food and Drug Administration
(FDA) for emergency use and recommended for all people 12 years of age
and up. While the daily count of total COVID-19 vaccine doses
administered across the United States has plateaued, the cumulative
number of people protected by COVID-19 vaccination has grown since the
August Order.\109\ As of March 30, 2022, over 209 million people in the
United States 12 years of age or older (73.9% of the population 12
years or older) have been fully vaccinated and over 245 million people
in the United States 12 years or older (86.6%) have received at least
one dose.\110\ To address concerns with potential waning immunity,\111\
booster shots are now recommended for all

[[Page 19950]]

adults ages 18 years and older.\112\ As of March 30, 2022, 48.3% of
fully vaccinated individuals 18 years and older in the United States
have also received a booster dose.\113\
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\109\ Supra note 65.
\110\ In comparison, as of July 28, 2021, over 163 million
people in the United States (57.6% of the population 12 years or
older) had been fully vaccinated and over 189 million people in the
United States (66.8% of the population 12 years or older) had
received at least one dose. Id.; see also COVID-19 Vaccinations in
the United States, Centers for Disease Control and Prevention,
<a href="https://covid.cdc.gov/covid-data-tracker/#vaccinations">https://covid.cdc.gov/covid-data-tracker/#vaccinations</a> (last updated
Mar. 30, 2022).
\111\ Thompson MG, Natarajan K, Irving SA, et al. Effectiveness
of a Third Dose of mRNA Vaccines Against COVID-19-Associated
Emergency Department and Urgent Care Encounters and Hospitalizations
Among Adults During Periods of Delta and Omicron Variant
Predominance--VISION Network, 10 States, August 2021-January 2022.
MMWR Morb Mortal Wkly Rep 2022;71:139-145. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm7104e3">http://dx.doi.org/10.15585/mmwr.mm7104e3</a>.
\112\ CDC Expands Eligibility for COVID-19 Booster Shots to All
Adults, Centers for Disease Control and Prevention, <a href="https://www.cdc.gov/media/releases/2021/s1119-booster-shots.html">https://www.cdc.gov/media/releases/2021/s1119-booster-shots.html</a> (released
Nov. 19, 2021). See also COVID-19 Vaccine Booster Shots, Centers for
Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html</a> (updated Feb. 2, 2022).
\113\ See supra note 112 (citing data as of Mar. 30, 2022).
Additionally, 46.5% of fully vaccinated individuals 12 years of age
and older in the United States have received a booster dose.
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Since the August Order, eligibility for COVID-19 vaccines has
expanded to include children ages five to 11.\114\ Children ages six
months through four years may soon become eligible for a COVID-19
vaccine; CDC is working with state and local jurisdictions for the
eventual rollout of this critical product.\115\ Improving COVID-19
vaccination coverage among children and adolescents is crucial to
maintaining low rates of COVID-19-associated morbidity and mortality
among these groups and ensuring a safe and expedited return to normal
routines for everyone.\116\
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\114\ See supra note 75.
\115\ COVID-19 Vaccination for Children, Centers for Disease
Control and Prevention, <a href="https://www.cdc.gov/vaccines/covid-19/planning/children.html">https://www.cdc.gov/vaccines/covid-19/planning/children.html</a> (last reviewed Dec. 9, 2021).
\116\ See generally Murthy BP, Zell E, Saelee R, et al. COVID-19
Vaccination Coverage Among Adolescents Aged 12-17 Years--United
States, December 14, 2020-July 31, 2021. MMWR Morb Mortal Wkly Rep
2021;70:1206-1213. DOI: <a href="http://dx.doi.org/10.15585/mmwr.mm7035e1">http://dx.doi.org/10.15585/mmwr.mm7035e1</a>.
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Vaccines, including boosters, continue to be the single most
important public health tool for fighting COVID-19 and CDC recommends
that all people get vaccinated as soon as they are eligible and stay up
to date on vaccinations.\117\ Evidence shows that people who have
completed the primary COVID-19 vaccination series, and received a
booster when eligible, are at substantially reduced risk of severe
illness and death from COVID-19; in contrast, the cumulative rate of
COVID-19-associated hospitalizations is substantially higher in
unvaccinated adults than in those who are up to date on COVID-19
vaccines.\118\ Therefore, vaccines, including booster doses when
appropriate, provide a substantial measure of protection against COVID-
19-associated hospitalization and severe disease, including from the
Omicron variant.\119\ The increased percentage of individuals who are
not only vaccinated but have also received a booster--which was not
available at the time of the August Order--strengthens community
protection levels and is a critical step toward resuming normal
routines safely.
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\117\ COVID-19 Vaccines Work, Centers for Disease Control and
Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html</a> (updated Dec. 23, 2021). See also supra note
111, attributing decline of vaccine effectiveness to waning vaccine
induced immunity over time, possible increased immune evasion by
SARS-CoV-2 variants, or a combination of these and other factors and
finding that receiving a booster shot was highly effective at
preventing COVID-19-associated emergency department and urgent care
encounters and preventing COVID-19-associated hospitalizations). See
also Stay Up to Date with Your Vaccines, Centers for Disease Control
and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html</a> (updated Mar. 30, 2022), a person is considered
up to date after receiving all recommended COVID-19 vaccines,
including any booster dose(s) when eligible. See also infra I.B.5.
\118\ This pattern applies to all age groups but is most
pronounced among adults aged 65 years and older, who are at
increased risk for hospitalization and death.
\119\ A recent CDC study found that among people hospitalized
with COVID-19, severe outcomes during the Omicron wave appear lower
than during previous high transmission waves. COVID Data Tracker
Weekly Review: Boosters Work--Interpretive Summary for Feb. 11,
2022, Centers for Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/02112022.html">https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/past-reports/02112022.html</a>.
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The availability of COVID-19 vaccines globally has also increased
dramatically since the August Order.\120\ On August 2, 2021, only 29%
of the world had received at least one dose of a COVID-19 vaccine, with
12% being fully vaccinated.\121\ As of March 30, 2022, 64.9% of the
world population has received at least one dose of a COVID-19 vaccine
and 57% of the global population is fully vaccinated with a primary
vaccine series.\122\ Fighting COVID-19 abroad is key to the nation's
effort to protect people at home and stay ahead of new variants;
therefore, the United States remains committed to accelerating global
vaccination efforts.\123\
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\120\ Coronavirus disease (COVID-19): Vaccine access and
allocation, World Health Organization, <a href="https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-">https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-</a>(covid-19)-
vaccine-access-and-allocation (Aug. 6, 2021).
\121\ Coronavirus (COVID-19) Vaccinations, Our World in Data,
<a href="https://ourworldindata.org/covid-vaccinations#what-share-of-the-population-has-received-at-least-one-dose-of-the-covid-19-vaccine">https://ourworldindata.org/covid-vaccinations#what-share-of-the-population-has-received-at-least-one-dose-of-the-covid-19-vaccine</a>
(updated Mar. 30, 2022).
\122\ Id.
\123\ See supra note 21.
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c. Treatments
Compared to August 2021, treatments for COVID-19 are more widely
available. Although monoclonal antibodies were available in August 2021
and some continue to be effective and were widely used during the
Omicron wave, such treatments must be administered by infusion and are
cumbersome to administer. The FDA has issued emergency use
authorizations (EUA) for a number of treatments for COVID-19 for people
at high risk of COVID-19 disease progression, some of which were
developed after August 2021.\124\ In February 2022, FDA issued an EUA
for a new monoclonal antibody that is specifically effective in
combatting the Omicron variant.\125\ FDA has also authorized oral
antiviral medications that target the SARS-CoV-2 virus.\126\ The U.S.
government has expedited the development, manufacturing, and
procurement of these treatments, securing 20 million courses of
antiviral pills, which have been shown to reduce the risk of
hospitalization or death by 89%.\127\ The availability of efficacious
and accessible treatments add a powerful layer of protection against
severe COVID-19 that was not available in the summer of 2021.\128\ The
U.S. government's commitment to making such medications available and
the ability to produce variant-specific treatments are critical
components of the next phase of the fight against COVID-19.
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\124\ Treatments Your Healthcare Provider Might Recommend if You
Are Sick, Centers for Disease Control and Prevention, <a href="https://www.cdc.gov/coronavirus/2019-ncov/your-health/treatments-for-severe-illness.html">https://www.cdc.gov/coronavirus/2019-ncov/your-health/treatments-for-severe-illness.html</a> (updated Jan. 13, 2022), noting monoclonal antibody
treatments may help the immune system recognize and respond more
effectively to the virus.
\125\ FDA News Release: Coronavirus (COVID-19) Update: FDA
Authorizes New Monoclonal Antibody for Treatment of COVID-19 that
Retains Activity Against Omicron Variant, U.S. Food and Drug
Administration, <a href="https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-authorizes-new-monoclonal-antibody-treatment-covid-19-retains">https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-authorizes-new-monoclonal-antibody-treatment-covid-19-retains</a> (Feb. 11, 2022).
\126\ See supra note 124.
\127\ See supra note 21. The availability of new oral antiviral
medications makes treatment more accessible to patients who are at
risk for progression to severe COVID-19, see FDA News Release:
Coronavirus (COVID-19) Update: FDA Authorizes First Oral Antiviral
for Treatment of COVID-19, U.S. Food and Drug Administration,
<a href="https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-authorizes-first-oral-antiviral-treatment-covid-19">https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-authorizes-first-oral-antiviral-treatment-covid-19</a> (Dec. 22, 2022).
\128\ Id. Antiviral pills will also be added to the stockpile
for the first time.
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4. Congregate Settings
As highlighted in the August Order, the very nature of congregate
settings increases the risk for COVID-19 outbreaks.\129\ Now, however,
numerous non-pharmaceutical and pharmaceutical interventions are
available to decrease the spread and severity of COVID-19 in these
settings.\130\ Throughout the

[[Page 19951]]

pandemic, congregate settings have adapted processes to mitigate COVID-
19 risk, including incorporating mask use, improving ventilation,
enhancing cleaning and disinfection procedures, and connecting people
to medical care. Current CDC guidance for correctional and detention
facilities recommends that certain key mitigation measures, including
provision of vaccinations and use of standard infection controls remain
in place at all times.\131\ In addition, facilities are encouraged to
identify their own risk levels and apply additional mitigation measures
as necessitated by local conditions.\132\
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\129\ See supra note 44, explaining preventing coronavirus
disease 2019 (COVID-19) in correctional and detention facilities can
be challenging because of population-dense housing, varied access to
hygiene facilities and supplies, and limited space for isolation and
quarantine.
\130\ See supra note 108.
\131\ Id. CDC recommends facilities should maintain, at all
times, the following aspects of standard infection control,
monitoring, and capacity to respond to cases of COVID-19: (1)
Provide COVID-19 vaccination, including boosters; (2) maintain
standard infection control; (3) maintain SARS-CoV-2 testing
strategies; (4) prevent COVID-19 introduction from the community;
and (5) prepare for outbreaks.
\132\ Some congregate settings and detention facilities are
resuming activities such as inter-facility transfers and detention
of individuals for non-violent offenses, which has previously been
paused due to the pandemic.
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Rather than requiring physical distancing to be kept in place at
all times, CDC's congregate settings guidance allows such measures to
be scaled up or down based on local data trends and facility
characteristics.\133\ Because case counts and hospitalizations are
decreasing in most areas of the country, many correctional and
detention facilities are resuming certain activities that had
previously been paused to facilitate physical distancing, signaling the
resumption of more normal operations for many congregate settings.\134\
---------------------------------------------------------------------------

\133\ Id. (Recommending that facilities develop and use metrics
to guide modification of COVID-19 prevention measures using data on
local trends and facility characteristics).
\134\ Per information provided by DHS.
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5. DHS Mitigation Measures
It is CDC's understanding that DHS facilities incorporate some of
the recommended COVID-19 mitigation measures for congregate settings
into their protocols. In particular, CBP continues to implement a
variety of mitigation measures based on the infection prevention
strategy referred to as the hierarchy of controls, which includes
engineering upgrades, masking for migrants, and PPE for its
workforce.\135\ Moreover, vaccine uptake among the CBP workforce has
reached approximately 86% among personnel on the U.S.-Mexico border.
---------------------------------------------------------------------------

\135\ These mitigation efforts include installing plexiglass
dividers in facilities, enhancing ventilation systems, adhering to
CDC guidance of cleaning and disinfection, and providing masks to
migrants, as well as PPE to CBP personnel. These measures generally
follow the infection prevention control referred to as the hierarchy
of controls. See Hierarchy of Controls, Centers for Disease Control
and Prevention, available at <a href="https://www.cdc.gov/niosh/topics/hierarchy/default.html">https://www.cdc.gov/niosh/topics/hierarchy/default.html</a> (last visited Mar. 30, 2022). The hierarchy
of controls is used as a means of determining how to implement
feasible and effective control solutions. The hierarchy is outlined
as: (1) Elimination (physically remove the hazard); (2) Substitution
(replace the hazard); (3) Engineering Controls (isolate people from
the hazard); (4) Administrative Controls (change the way people
work); and (5) PPE (protect people with Personal Protective
Equipment). CBP also continues to update the CBP Job Hazard Analysis
and the CBP COVID toolkit based on the latest relevant public health
guidance.
---------------------------------------------------------------------------

Of particular note, DHS has recently begun implementing a
vaccination program for migrants processed under Title 8 immigration
authorities and held in CBP facilities. The DHS vaccination program
will apply to all age-appropriate migrants who lack legal status and
are processed pursuant to Title 8 authorities; have entered the United
States after crossing the Southwest Border; and are taken into DHS
custody. DHS has conveyed to CDC that all such migrants who are unable
to provide proof of vaccination with an FDA EUA- or WHO EUL-approved
vaccine will be provided an initial dose of a COVID-19 mRNA vaccine.
DHS began implementing their vaccination program at 11 sites on March
28, 2022. DHS is working to expand this program over the next two
months and states that their goal is to provide vaccinations to up to
6,000 migrants a day across 27 sites across the Southwest Border by May
23, 2022.
In addition, since the August Order, the DHS Office of the Chief
Medical Officer has worked with partners in local communities to move
individuals safely out of CBP custody and through the appropriate Title
8 immigration procedures, as applicable to the individual noncitizens.
Through these partnerships, DHS has supported state, local, tribal, and
territorial partners and NGOs in developing robust COVID-19 testing and
quarantine programs along the Southwest Border.

II. Public Health Determination

As the COVID-19 pandemic and public health landscape evolve, CDC
reassesses the need for continued measures under 42 U.S.C. 265, 268 and
42 CFR 71.40, the authorities that support the CDC Orders.\136\ This
Public Health Determination and Termination is based upon the most
recent science and data available to CDC. Based upon the data, CDC has
determined that, although the implementation of the CDC Orders to
reduce the numbers of noncitizens held in congregate settings in POEs
and Border Patrol stations has been part of the layered COVID-19
mitigation strategy used over the past two years, less burdensome
measures are now available to mitigate the introduction, transmission,
and spread of COVID-19 resulting from the entry of covered noncitizens.
---------------------------------------------------------------------------

\136\ As noted above, CDC reviews the public health rationale
underlying the need for the Order every 60 days.
---------------------------------------------------------------------------

This Public Health Determination and Termination is the most recent
step in CDC's continued efforts toward aligning the public health
measures response to the COVID-19 pandemic with the best available
science. Throughout the COVID-19 pandemic, CDC has taken a range of
actions to help protect the public's health. These actions have been
informed by the status of the pandemic based on the scientific and
epidemiological information available at the time. The actions fall
along a spectrum of restrictions on movement and activities in public.
Some, like the masking order for conveyances, impact individuals but do
not restrict movement; others, like the No Sail Order, apply to entire
industries.
The CDC Orders issued under the authorities of 42 U.S.C. 265, 268
and 42 CFR 71.40 suspending the right to introduce certain persons into
the United States are among the most restrictive measures CDC has
undertaken in the fight against COVID-19. The U.S. government has only
used the extraordinary authority available under 42 U.S.C. 265 to
restrict the introduction of persons in one instance prior to the
COVID-19 pandemic--in 1929, in response to a meningitis outbreak.\137\
During the earlier periods of the COVID-19 pandemic, while scientists
were still learning about its epidemiology and developing therapeutics
and vaccines, the CDC Orders were deemed necessary due to the rapid
spread of the virus. As the understanding of the virus has grown and
vaccines and therapeutics for the disease have become more widely
available, lower COVID-19 Community Levels have been observed.
---------------------------------------------------------------------------

\137\ See 85 FR 56424, 56440-42 (noting that, despite passing
the precursor to 42 U.S.C. 265 during a cholera epidemic in 1893,
the U.S. government did not exercise this authority until 1929).
---------------------------------------------------------------------------

The August Order recognized the full panoply of mitigation measures
available as key to slowing the spread of the virus and protecting U.S.
healthcare systems while widespread vaccination efforts continued. Like
other COVID-19 mitigation measures issued by CDC, the August Order was
always intended as a temporary measure as understanding of the virus
evolved. The scientific knowledge, availability of vaccines and

[[Page 19952]]

therapeutics, and high percentage of the U.S. population living in a
county identified as having ``low'' or ``medium'' COVID-19 Community
Levels have permitted CDC to carefully step-down the various public
health mitigation measures used. This step-down involves purposeful
narrowing of some restrictions while terminating others when the public
health need for and efficacy of the measures no longer outweigh the
severity of the restriction. For example, CDC took the unprecedented
step of halting cruise ship travel during the earliest phases of the
pandemic, but permitted gradual resumption of cruises as the public
health situation evolved.\138\ Likewise, the United States has
transitioned from suspending the entry of persons traveling from
specified countries \139\ to a framework of CDC travel health notices
and testing and proof of vaccination requirements \140\ that allow for
reopening global travel and migration while still implementing
necessary mitigation measures. CDC believes that the restrictions
remaining in place as part of the travel framework (e.g., proof of
vaccination requirements for noncitizens entering the United States by
air or land POE, and proof of a negative COVID-19 test result) \141\
continue to be necessary and are appropriately balanced to minimize
restrictions on individuals. CDC continually evaluates the need for
these measures and is committed to tailoring them to meet the current
public health needs. These careful step-downs have been driven by the
evolution of the COVID-19 pandemic and scientific developments and are
part of CDC's commitment to exercise its authorities in a manner that
provides the greatest benefit for public health while imposing the
minimum necessary burden on individuals and communities.
---------------------------------------------------------------------------

\138\ CDC issued the original No Sail Order on March 14, 2020,
and a version of the order remained in place until October 29, 2020,
when it was replaced with a Framework for Conditional Sailing which
permitted a phased resumption of cruise ship operations as long as
certain public health mitigation measures were met. This Framework
for Conditional Sailing became non-binding for cruise ships in
Florida by court order in July 2021 and was allowed to expire on
January 15, 2022. The Framework was replaced by a voluntary program,
CDC's COVID-19 Program for Cruise Ships, wherein cruise lines
choosing to opt into the program are required to follow all
recommendations and guidance as a condition of their participation
in the program. See Technical Instructions for CDC's COVID-19
Program for Cruise Ships Operating in U.S. Waters, Centers for
Disease Control and Prevention, <a href="https://www.cdc.gov/quarantine/cruise/management/technical-instructions-for-cruise-ships.html#program-for-cruise-ships">https://www.cdc.gov/quarantine/cruise/management/technical-instructions-for-cruise-ships.html#program-for-cruise-ships</a> (last updated Mar. 18, 2022);
see also supra notes 38, 49, and 60.
\139\ See supra notes 35, 59, 66, 78, and 79.
\140\ See supra note 67.
\141\ CDC Orders, Centers for Disease Control and Prevention,
<a href="https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/laws-regulations.html">https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/laws-regulations.html</a> (updated Mar. 12, 2022).
---------------------------------------------------------------------------

In the context of the CDC Orders issued under 42 U.S.C. 265, 268
and 42 CFR 71.40, this public health-driven step-down first narrowed
implementation to except UC and then fully terminated the Orders with
respect to UC once there was no longer public health justification for
such a suspension. While the CDC Orders under 42 U.S.C. 265, 268 and 42
CFR 71.40 provided an important measure to protect against the
introduction, transmission, and spread of COVID-19 during earlier
phases of the pandemic by reducing the number of noncitizens held in
congregate settings, other public health measures are now available to
provide necessary public health protection for noncitizens, Americans,
and the DHS workforce.\142\ CDC acknowledges that public health
concerns may arise in congregate settings, including COVID-19
transmission. CDC has determined that, although there is still a risk
of COVID-19 transmission in crowded congregate settings, including DHS
facilities, that risk does not present a sufficiently serious danger to
public health to necessitate maintaining the August Order. Furthermore,
the mitigation measures available will help reduce severe outcomes and
reduce the serious danger of introduction, transmission, and spread of
COVID-19 into the United States by covered noncitizens.
---------------------------------------------------------------------------

\142\ Since the August Order, the collection, production, and
analysis of key COVID-19 response metrics has continued to expand.
Advances in public health surveillance may enable officials and
facilities (including congregate setting facilities) to rapidly
institute necessary mitigation measures in the event of an outbreak.
For example, CDC launched and is continually enhancing the National
Wastewater Surveillance System to track the presence of SARS-CoV-2
in wastewater samples collected across the country. See supra note
21.
---------------------------------------------------------------------------

Both at home and abroad, vaccination rates are increasing.
Vaccination among the American public and the DHS workforce in
particular has been largely successful and, as stated in the August
Order, widespread vaccination of federal employees and personnel in
congregate settings at POE and Border Patrol stations demonstrates
important progress toward the normalization of border operations.\143\
Since August 2021, vaccination rates in the countries of origin for the
current majority of incoming noncitizens have also increased
dramatically.\144\ Such global increases in vaccination rates and
infection-induced immunity provide additional layers of protection. As
noted above, DHS is currently scaling up a program that provides
vaccines to encountered noncitizens taken into CBP custody along the
Southwest Border.\145\ CDC is supportive of these efforts as a public
health measure as they align with CDC's and the U.S. government's
emphasis on global vaccination to fight COVID-19. Even if full COVID-19
vaccination cannot be assured, partial vaccination provides some level
of protection against severe illness and hospitalization and helps
maintain U.S. healthcare resources.\146\
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\143\ CBP most recently reported vaccination rates between 75%
and 91% among its U.S. Border Patrol and Office of Field Operations
personnel.
\144\ Thus far in 2022, Mexico, Cuba, Guatemala, Honduras, and
Nicaragua constitute the top five countries of origin for covered
noncitizens. Rates of vaccination for each country are as follows:
Cuba: 88% fully vaccinated, 94% only partly vaccinated; Guatemala:
33% fully vaccinated, 9.8% only partly vaccinated; Honduras: 47%
fully vaccinated, 6% only partly vaccinated; Mexico: 61% fully
vaccinated, 4.5% only partly vaccinated; Nicaragua: 61% fully
vaccinated, 82% only partly vaccinated. Coronavirus (COVID-19)
Vaccinations, Our World in Data, <a href="https://ourworldindata.org/covid-vaccinations">https://ourworldindata.org/covid-vaccinations</a> (last visited Mar. 31, 2022).
\145\ See supra I.B.5. CDC strongly supports broad vaccination
at the Southwest Border in furtherance of public health, and will
implement termination of the Order on May 23, 2022, in part to give
DHS time to scale up its vaccination program. That said, given the
current status of the pandemic and the range of mitigation measures
currently in place and in the process of being implemented, CDC
believes the serious risk to public health that the CDC Orders were
intended to address has been sufficiently alleviated, even in the
absence of complete implementation of the DHS vaccination program.
\146\ As demonstrated by the U.S. government's experience with
Operation Artemis and Operation Allies Welcome, a COVID-19
vaccination program helps protect noncitizens, as well as personnel
serving these populations and American communities. Vaccination of
all encountered noncitizens aligns with larger U.S. government
pandemic efforts and safe travel policies.
---------------------------------------------------------------------------

The August Order also highlighted the threat posed by emerging
variants and the potential for a future, vaccine-resistant variant,
either of which could negatively impact U.S. communities and local
healthcare resources.\147\ Based in part on these threats, CDC
concluded at that time that SA and FMU should continue to be subject to
the August Order, pending further improvements in the public health
situation, and subject to continual reassessment.\148\ Since the August
Order was implemented, public health officials have learned a great
deal about variants and how best to respond to them. In response to
Omicron, the U.S. government updated the National COVID-19 Preparedness
Plan for monitoring COVID-19 to swiftly adapt tools to combat a new
variant and deploy emergency resources to help communities.\149\ The
Plan includes steps to ensure that variant surveillance,

[[Page 19953]]

vaccines, tests, and treatments can be updated and deployed
quickly.\150\
---------------------------------------------------------------------------

\147\ 86 FR 42828, 42837.
\148\ Id.
\149\ See supra note 21.
\150\ Id.
---------------------------------------------------------------------------

At this point in the pandemic, the United States has high rates of
vaccine and infection-induced immunity in the population, as well as
availability of effective therapeutics, testing, and well-fitting
masks. These tools, which have been developed and distributed over the
past two years, help minimize medically significant disease and prevent
excessive strain on the healthcare sector even while SARS-CoV-2 virus
continues to circulate. As noted above, 97.1% of the U.S. population is
currently living in an area classified as having a ``low'' COVID-19
Community Levels, meaning most of the population can operate under more
relaxed COVID-19 mitigation strategies.\151\ Noteworthy for purposes of
this Determination, as of March 31, 2022, all 24 U.S. counties along
the U.S.-Mexico border are classified as having a ``low'' COVID-19
Community Level.\152\ Like prior CDC Orders, the August Order, issued
during the fourth wave of the pandemic, noted the goal of slowing the
introduction, transmission, and spread of SARS-CoV-2 into the United
States by covered noncitizens.\153\ With the ebb of the Omicron surge
across the United States, however, the public health findings
underlying the August Order have changed. Although COVID-19 remains a
concern, the readily available and less burdensome public health
mitigation tools to combat the disease render an order under 42 U.S.C.
265 to prevent a serious danger to the public health unnecessary. At
this point in the pandemic, the previously identified public health
risk is no longer commensurate with the extraordinary measures
instituted by the CDC Orders. As the pandemic evolves, CDC will
continue to monitor the situation with respect to COVID-19 at U.S.
borders and will continue to consult with DHS on combatting COVID-19 in
DHS facilities following the Termination of the August Order.
---------------------------------------------------------------------------

\151\ Per internal CDC calculations.
\152\ COVID-19 Integrated County View, Centers for Disease
Control and Prevention, <a href="https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels">https://covid.cdc.gov/covid-data-tracker/#county-view?list_select_state=all_states&list_select_county=all_counties&data-type=CommunityLevels</a> (last updated Mar. 31, 2022), noting 100%
(n=24) of counties along the U.S.-Mexico border are considered
``Low'': California (San Diego County, Imperial County); Arizona
(Pima County, Santa Cruz County, Cochise County, Yuma County); New
Mexico (Luna County, Dona Ana County, Otero County, Eddy County, Lea
County); and Texas (Presidio County, Brewster County, Terrell
County, Webb County, Zapata County, Cameron County, El Paso County,
Hudspeth County, Val Verde County, Kinney County, Maverick County,
Starr County, Hidalgo County).
\153\ See 86 FR 42828, 42834 and 42838.
---------------------------------------------------------------------------

III. Legal Considerations

A. Temporary Nature of Orders Under 42 U.S.C. 265 and Absence of
Reliance Interests

In issuing this Public Health Determination and Termination, CDC
has considered whether state or local governments, or their
subdivisions, have any ``legitimate reliance'' \154\ interests in the
continued expulsion of covered noncitizens pursuant to 42 U.S.C. 265
(Section 265). CDC has determined that no state or local government
could be said to have legitimately relied on the CDC Orders issued
under 42 U.S.C. 265, 268 and 42 CFR 71.40 to implement long-term or
permanent changes to its operations because those orders are, by their
very nature, short-term orders, authorized only when specified
statutory criteria are met, and subject to change at any time in
response to an evolving public health crisis. Section 265 may be
invoked only if CDC determines that there is a ``serious danger of the
introduction of [a communicable] disease into the United States, and
that this danger is so increased by the introduction of persons or
property from such country [where the communicable disease exists] that
a suspension of the right to introduce such persons and property is
required in the interest of the public health.'' \155\ Moreover, the
statute may be invoked only ``for such period of time as [CDC] may deem
necessary'' to avert such a danger.\156\ As HHS's implementing
regulation further recognizes, in prohibiting the introduction of
covered persons ``in whole or in part,'' \157\ a CDC Order is effective
``only for such period of time that the Director deems necessary to
avert the serious danger of the introduction of a quarantinable
communicable disease.'' \158\
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\154\ See Dep't of Homeland Sec. v. Regents of the Univ. of
Cal., 140 S. Ct. 1891, 1913 (2020).
\155\ 42 U.S.C. 265.
\156\ Id.
\157\ Id.
\158\ 42 CFR 71.40(a).
---------------------------------------------------------------------------

For these reasons, the CDC Orders have consistently been subject to
periodic reviews to ensure their continued necessity. CDC's initial
order issued in March 2020 made clear that the Order represented a
``temporary suspension of the introduction of [covered] persons into
the United States'' \159\ and that the order would remain effective
only for ``30 days, or until [CDC] determine[s] that the danger of
further introduction of COVID-19 into the United States has ceased to
be a serious danger to the public health, whichever is shorter.'' \160\
The March 2020 Order was subsequently extended on April 20, 2020, and
then amended on May 19, 2020. The fact that the policy was frequently
reviewed should have underscored that CDC's use of its authority under
42 U.S.C. 265 was a temporary measure subject to change at any time.
The October 2020 Order again confirmed this understanding of CDC's
authority, noting the ``temporary'' nature of the suspension of the
introduction of covered persons, as well as the facts that the Order
would be reviewed every 30 days based on ``the latest information
regarding the status of the COVID-19 pandemic and associated public
health risks,'' and that CDC ``retain[ed] the authority to extend,
modify, or terminate the Order, or implementation of [the] Order, at
any time as needed to protect public health.'' \161\
---------------------------------------------------------------------------

\159\ 85 FR at 17061 (emphasis added).
\160\ 85 FR at 17068.
\161\ 85 FR at 65807, 65812.
---------------------------------------------------------------------------

In addition, CDC's ability to exercise its authority under Section
265 as to certain groups has fluctuated due to litigation, further
rendering it unreasonable for any state or local government to have
acted in reliance on the continued exercise of the authority. CDC's
exercise of the Section 265 authority was first challenged shortly
after CDC issued its initial order in March 2020, and subsequent court
orders enjoining CDC from exercising its authority under 42 U.S.C. 265
as to certain groups of covered noncitizens should have further
discouraged reliance on temporary CDC orders. For example, in November
2020, the United States District Court for the District of Columbia
enjoined the expulsion of UC on the basis that Section 265 likely did
not authorize such expulsions.\162\ Although the government obtained a
stay of the injunction in January 2021,\163\ the extent of the
government's authority under Section 265 remained contested. In
addition, in September 2021, the United States District Court for the
District of Columbia similarly enjoined the expulsion of FMU, again on
the basis that Section 265 likely did not authorize such
expulsions.\164\ The U.S. Court of Appeals for the D.C. Circuit
recently upheld the government's authority under 42 U.S.C. 265 to expel
FMU, but the court held

[[Page 19954]]

that such expulsions cannot be to places where the noncitizen are
likely to be persecuted or tortured.\165\ Although the decision will
not take effect until the mandate issues in late April 2022, the
decision should have put any state or local government on notice that
there might be significant practical constraints on the government's
ability to expel covered FMU quickly.
---------------------------------------------------------------------------

\162\ See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020).
\163\ Order, P.J.E.S. v. Mayorkas, et al., No. 20-5357 (D.C.
Cir. Jan. 29, 2021), Doc. No. 1882899.
\164\ See Huisha-Huisha v. Mayorkas, No. CV 21-100 (EGS), 2021
WL 4206688, at *12 (D.D.C. Sept. 16, 2021).
\165\ Id. at *1. The D.C. Circuit also noted the ``considerable
difference'' in public health situations between March 2020 and
March 2022. Id. at *13.
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Moreover, by August 2021, state and local governments were on
notice that the federal government would be taking steps towards the
resumption of normal border operations. In the August 2021 Order, CDC
stated that it ``view[ed] this public health reassessment as setting
forth a roadmap toward the safe resumption of normal processing of
arriving noncitizens, taking into account COVID-19 concerns and
immigration facilities' ability to implement mitigation measures.''
\166\ Accordingly, state and local governments could not have
reasonably relied on CDC's indefinite use of its expulsion authority
under Section 265. As a factual matter, CDC is not aware of any
reasonable or legitimate reliance on the continued expulsion of covered
noncitizens under 42 U.S.C. 265 beyond potentially local healthcare
systems' allocation of resources, which CDC has considered in this
Order.\167\
---------------------------------------------------------------------------

\166\ 86 FR 42828, 42831; see also id. at 42837 (discussing a
necessary mitigation measure ``as DHS moves towards the resumption
of normal border operations''); id. at 42838 (``CDC believes that
the gradual resumption of normal border operations under Title 8 is
feasible. With careful planning, this may be initiated in a stepwise
manner that complies with COVID-19 mitigation protocols.''); id. at
42840 (noting that ``although this Order will continue with respect
to SA and FMU, DHS will use case-by-case exceptions based on the
totality of the circumstances where appropriate to except individual
SA and FMU in a manner that gradually recommences normal migration
operations as COVID-19 health and safety protocols and capacity
allows''); id. (CDC considered ``the use of case-by-case exceptions
as a step towards the resumption of normal border operations under
Title 8'').
\167\ See supra I.B.2.
---------------------------------------------------------------------------

Even if a state or local government had relied on the continued
existence of a CDC order under this authority, 42 U.S.C. 265 only
authorizes CDC to prevent the introduction of noncitizens when it is
required in the interest of public health. No state or local government
could reasonably rely on CDC's continued application of Section 265
once CDC determined that there is no longer sufficient public health
risk present with respect to the introduction of covered noncitizens.
Therefore, CDC's considered judgment is that any reliance interest that
might be said to exist in connection with the continued suspension of
the right to introduce covered noncitizens under 42 U.S.C. 265 is not
weighty enough to displace CDC's determination that there is no public
health justification for such a suspension at this time.\168\ To the
extent that any state or local government did rely on the expulsion of
noncitizens for purposes of resource allocation despite the reasons
cautioning against such reliance, CDC concludes that resource
allocation concerns do not outweigh CDC's determination that the
suspension of the right to introduce covered noncitizens is not
required to avert a serious danger to public health.
---------------------------------------------------------------------------

\168\ See Regents, 140 S. Ct. at 1913 (explaining that features
evidencing the temporary and non-rights-conferring nature of a
government program ``surely are pertinent in considering the
strength of any reliance interests,'' and can be considered by the
agency).
---------------------------------------------------------------------------

CDC has also considered whether there may be any short-term
reliance on the continued expulsion of noncitizens under the August
2021 Order. CDC concludes that any short-term reliance interests should
be limited for all the reasons explained above, and particularly in
light of the expressly temporary nature of the Order. For the same
reasons, CDC concludes that any such reliance does not outweigh CDC's
determination that the expulsion of covered noncitizens is not required
to avert a serious danger to public health. Moreover, to the extent
that any state or local government has made any short-term plans based
on the existence of the August Order, the effective date of this
Termination has been set for 52 days from the date of issuance, thus
providing state and local governments time to adjust to the resumption
of regular Title 8 immigration processing.
Finally, the CDC Orders issued under 42 U.S.C. 265, 268 and 42 CFR
71.40 are not, and do not purport to be, policy decisions about
controlling immigration; rather, as explained, CDC's exercise of its
authority under Section 265 depends on the existence of a public health
need. Thus, to the extent that state and local governments along the
border or elsewhere were relying on an order under 42 U.S.C. 265 as a
means of controlling immigration, such reliance would not be reasonable
or legitimate. And even if such reliance were reasonable or legitimate,
that reliance would not outweigh CDC's conclusion that expulsions are
not necessary under the terms of 42 U.S.C. 265 or warrant disruption of
ordinary processing of covered noncitizens.

B. Basis for Termination Under 42 U.S.C. 265, 268 and 42 CFR 71.40

CDC is hereby terminating the August Order \169\ and all prior
orders issued pursuant to sections 362 and 365 of the PHS Act (42
U.S.C. 265, 268) and the implementing regulation at 42 CFR 71.40.\170\
This Termination will be implemented on May 23, 2022, for the
operational reasons outlined herein, including to give DHS time to
implement additional COVID-19 mitigation measures. The statutory and
regulatory authorities permit the CDC Director to issue Orders
prohibiting, in whole or in part, the introduction into the United
States of persons from designated foreign countries (or one or more
political subdivisions or regions thereof) or places, only for such
period of time that the Director deems necessary to avert the serious
danger of the introduction of a quarantinable communicable disease,
based on a determination by the Director that:
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\169\ See supra notes 1 and 4.
\170\ See supra note 7.
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(1) By reason of the existence of any quarantinable communicable
disease in a foreign country (or one or more political subdivisions or
regions thereof) or place there is serious danger of the introduction
of such quarantinable communicable disease into the United States; and
(2) This danger is so increased by the introduction of persons from
such country (or one or more political subdivisions or regions thereof)
or place that a suspension of the right to introduce such persons into
the United States is required in the interest of public health.\171\
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\171\ 42 U.S.C. 265; 42 CFR 71.40.
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Pursuant to 42 U.S.C. 265 and the implementing regulation, the CDC
Director has the authority to issue orders to mitigate the introduction
and further spread of COVID-19 disease.\172\ In recognition of the
extraordinary nature of these emergency public health powers, section
265 and its implementing regulation contemplate that the exercise of
these authorities will be temporally and geographically limited in
scope as described below. Critically, these authorities also require
that any orders issued will be terminated when they are no longer
necessary to protect the public health. The authority to make this
determination has been delegated to the CDC Director.
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\172\ 85 FR 56424, 56425-26. The Director may suspend the
introduction of persons not only to prevent the introduction of a
quarantinable communicable disease, but also to aid in continued
efforts to mitigate spread of that disease.

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[[Page 19955]]

CDC explained in the preamble to the Final Rule for 42 CFR 71.40
that, in issuing an Order under these authorities, it may ``consider a
wide array of facts and circumstances when determining what is required
in the interest of public health in a particular situation . . .
includ[ing]: the overall number of cases of disease; any large increase
in the number of cases over a short period of time; the geographic
distribution of cases; any sustained (generational) transmission; the
method of disease transmission; morbidity and mortality associated with
the disease; the effectiveness of contact tracing; the adequacy of
state and local healthcare systems; and the effectiveness of state and
local public health systems and control measures.'' \173\ Other factors
noted in the Final Rule are the potential for disease spread among
persons held in congregate settings, the potential for disease spread
to the community at large, and strain on healthcare systems.\174\
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\173\ Id. at 56444.
\174\ Id. at 56431; 56434.
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CDC is committed to avoiding the imposition of unnecessary burdens
in exercising its communicable disease authorities. This aligns with
the underlying legal authority in 42 U.S.C. 265, which makes clear that
this authority extends only for such period of time deemed necessary to
avert the serious danger of the introduction of a quarantinable
communicable disease into the United States.\175\ Such an order must
also be predicated, in part, upon a determination that the danger of
such introduction is so increased that a suspension of the right to
introduce such persons into the United States is required in the
interest of public health.\176\
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\175\ 42 U.S.C. 265; 42 CFR 71.40.
\176\ 42 CFR 71.40.
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CDC has considered these and other relevant factors in the
foregoing determination, including the overall shift in the U.S.
government response to the pandemic, and has determined that less
restrictive means are available to avert the public health risks
associated with the introduction, transmission, and spread of COVID-19
into the United States due to the entry of covered noncitizens.
Although COVID-19 continues to spread within the United States, as a
result of the numerous tools for disease prevention, mitigation, and
treatment which have become available over the past two years, and the
other considerations explained above, an order suspending the right to
introduce covered noncitizens under 42 U.S.C. 265 is no longer required
in the interest of public health.

IV. Issuance and Implementation

Based on the foregoing Public Health Determination, I hereby
Terminate the August Order and all previous orders issued pursuant to
Sections 362 and 365 of the PHS Act (42 U.S.C. 265, 268), and their
implementing regulations under 42 CFR 71.40.\177\ This Termination will
be implemented on May 23, 2022.
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\177\ Control of Communicable Diseases; Foreign Quarantine:
Suspension of the Right to Introduce and Prohibition of Introduction
of Persons into United States from Designated Foreign Countries or
Places for Public Health Purposes, 85 FR 56424 (Sept. 11, 2020).
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Following an assessment of the current epidemiologic status of the
COVID-19 pandemic and the U.S. government's ongoing response efforts, I
find there is no longer a public health justification for the August
Order and previous Orders issued under these authorities; employing
such a broad restriction to preserve the health and safety of U.S.
citizens, U.S. nationals, and lawful permanent residents, and personnel
and noncitizens in POE and U.S. Border Patrol stations is no longer
necessary to protect the public health. Other current public health
mitigation measures sufficiently reduce the serious danger of
introduction, transmission, and spread of the virus that causes COVID-
19 as a result of the entry of covered noncitizens, including in
congregate settings where such noncitizens would otherwise be held
while undergoing immigration processing, including at POE and U.S.
Border Patrol stations at or near the U.S. land and adjacent coastal
borders.
Termination of the August Order is based on the current status of
the COVID-19 pandemic and the available public health mitigation
measures. In making this determination, I have considered myriad facts,
including epidemiological information such as the viral
transmissibility and asymptomatic transmission of COVID-19, the
epidemiology and spread of SARS-CoV-2 variants, the morbidity and
mortality associated with the disease for individuals in certain risk
categories, COVID-19 Community Levels, national levels of transmission
and immunity, the availability and efficacy of vaccination and
treatments, as well as public health concerns with congregate settings
at border facilities. While holding noncitizens in congregate settings
with limited options for COVID-19 mitigation is accompanied by inherent
risk, the overall public health landscape in the United States has
changed such that the justification for the August Order is no longer
sustained.
The COVID-19 pandemic is ongoing and appropriate public health
mitigation measures must continue to be applied.\178\ Although it
cannot be known how the spread of SARS-CoV-2 will change in the future
(e.g., due to the emergence of a new variant), CDC plans to rely on
COVID-19 Community Levels, among other factors, to inform how
prevention measures may be used to minimize the impact of COVID-19 on
health and society, including at the U.S. borders.\179\ To that end,
CDC will continue to assess the public health situation at the U.S.
borders even after this Termination as part of its comprehensive COVID-
19 response. If, for example, there is a substantial change in the
public health situation with respect to the pandemic, such as due to
new and particularly concerning SARS-CoV-2 variants, CDC could
determine a new order under 42 U.S.C. 265, 268 and 42 CFR 71.40 is
necessary. Any such determination would be based on the public health
needs identified at that time.
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\178\ See supra note 105, indicating that the whole community
can be safe only when [everyone] take[s] steps to protect each
other, even when the COVID-19 Community Level is low or medium.
\179\ Id.
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A. Implementation of This Termination

CDC is required by the Final Rule to consult with ``all Federal
departments or agencies whose interests would be impacted by this
order,'' ``as practicable under the circumstances.\180\ CDC recognizes
that resumption of border operations under Title 8 authorities, and the
need to put additional appropriate COVID-19 mitigation measures in
place, requires time to operationalize in a manner that protects the
health and safety of the migrants, workforce, and American communities.
Based on DHS' recommendation and in order to provide DHS time to
implement operational plans for fully resuming Title 8 processing,
including incorporating appropriate COVID-19 measures, this Termination
will be implemented on May 23, 2022.
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\180\ 42 CFR 71.40.
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DHS has represented that over the next several weeks it is taking
important steps to implement processes in preparation for the full
resumption of border operations pursuant to Title 8 authorities, in a
manner that promotes the health and safety of migrants, CBP employees,
and the local communities. Most recently, DHS has initiated a
vaccination program for all age-eligible migrants who lack legal status
and are processed pursuant to Title 8

[[Page 19956]]

authorities; this program will be scaled up over the next two
months.\181\ As stated above, CDC recognizes vaccination as the single
most important public health tool for fighting COVID-19 and recommends
that all eligible persons, regardless of citizenship, be vaccinated and
remain up to date with boosters.\182\ The implementation timeline of
this Termination will provide DHS with time to scale its vaccination
program, as well as ready its operational capacity, implement
appropriate COVID-19 protocols, and prepare for resumption of regular
migration under Title 8.
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\181\ See supra I.B.5.
\182\ In line with CDC's emphasis on the importance of
vaccination, CDC has kept its requirement for noncitizens to provide
proof of vaccination for air travel and also supports DHS's Order
requiring the same at the land borders (see supra notes 67 and 83).
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CDC recognizes that the Termination of the August Order will lead
to an increase in the number of noncitizens being processed in DHS
facilities which could result in overcrowding in congregate settings.
Moreover, DHS projects, based on available intelligence as well as
seasonal migration patterns, an increase in encounters in the coming
months, which could lead to further crowding in DHS facilities. DHS
reports that it is taking steps to plan for such increases, including
by readying decompression plans, deploying additional personnel and
resources to support U.S. Border Patrol, and enhancing its ability to
safely hold noncitizens it encounters. Putting such plans in place,
ensuring that the workforce is adequately and appropriate trained for
their shifting roles, and deploying critical resources require time.
This Termination will be implemented on May 23, 2022, to provide DHS
with additional time to ready such operational plans and prepare for
full resumption of regular migration under Title 8.
For the foregoing reasons, this Termination will be implemented on
May 23, 2022. To the extent that any state or local government has a
misplaced reliance interest on the August Order, the timeline for
implementation of the Termination also allows time for such entities to
adjust their planning in anticipation of the full resumption of Title 8
border processing. During this temporary period of continued
application of the August Order, DHS will continue to exercise its
discretion to issue case-by-case exceptions based on the totality of
the circumstances as set forth in the August Order.\183\ DHS has
represented that it will continue to make use of this exception where,
for example, a noncitizen may suffer particular harms associated with
expulsion (e.g., vulnerable and medically fragile persons) until the
Termination is effective.
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\183\ ``Persons whom customs officers determine, with approval
from a supervisor, should be excepted from this Order based on the
totality of the circumstances, including consideration of
significant law enforcement, officer and public safety,
humanitarian, and public health interests. DHS will consult with CDC
regarding the standards for such exceptions to help ensure
consistency with current CDC guidance and public health
recommendations.'' 86 FR 42828, 42841 (Aug. 5, 2021).
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B. APA Review

This Termination shall be implemented on May 23, 2022. I consulted
with DHS and other federal departments as required by the Final Rule
before I issued this Order and requested that DHS aid in the
implementation of this Termination.\184\ DHS is developing operational
plans for implementing this Termination. CDC will review these plans
and ensure that they are consistent with the language of this
Termination and public health best practices.
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\184\ 42 U.S.C. 268; 42 CFR 71.40(d).
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This Termination, like the preceding Orders issued under this
authority, is not a rule subject to notice and comment under the
Administrative Procedure Act (APA).\185\ Even if it were, notice and
comment are not required because there is good cause to dispense with
prior public notice and the opportunity to comment on this
Termination.\186\ Given the extraordinary nature of an order under
Section 265, the resultant restrictions on application for asylum and
other immigration processes under Title 8, and the statutory and
regulatory requirement that an CDC order under the authority last no
longer than necessary to protect public health, it would be
impracticable and contrary to the public interest and immigration laws
that apply in the absence of an order under 42 U.S.C. 265 to delay the
effective date of this termination beyond May 23, 2022 for the reasons
outlined herein.\187\ As explained, DHS requires time to institute
operational plans to implement this order, including COVID-19
mitigation measures, and begin regular immigration processing pursuant
to Title 8. In light of the August Order's significant disruption of
ordinary immigration processing and DHS's need for time to implement an
orderly and safe termination of the order, there is good cause not to
delay issuing this termination or to delay the termination of this
order past May 23, 2022. In addition, this Order concerns ongoing
discussions with Canada, Mexico, and other countries regarding
immigration and how best to control COVID-19 transmission over shared
borders and therefore directly ``involve[s] . . . a . . . foreign
affairs function of the United States;'' \188\ thus, notice and comment
are not required.
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\185\ While this Termination is not a rule subject to notice and
comment under the APA (5 U.S.C. 553), the Office of Information and
Regulatory Affairs has determined that this is a major rule as
defined by Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996, also known as the Congressional Review Act
(CRA). 5 U.S.C. 804(2). The agency finds, for the reasons listed
above, that good cause exists to make this rule effective on May 23,
2022, under 5 U.S.C. 808(2).
\186\ 5 U.S.C. 553(b)(3)(B).
\187\ 5 U.S.C. 553(a)(1).
\188\ 5 U.S.C. 553(a)(1).
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With this Termination, I hereby determine that the danger of
further introduction, transmission, or spread of COVID-19 into the
United States from covered noncitizens, as defined in the August Order,
has ceased to be a serious danger to the public health and therefore
the continuation of the August Order, and all previous orders issued
under the same authority, is no longer necessary to protect public
health. Nothing in this Termination will prevent me from issuing a new
Order under 42 U.S.C. 265, 268 and 42 CFR 71.40 based on new findings,
as dictated by public health needs.

Sherri Berger,
Chief of Staff, Centers for Disease Control and Prevention.
[FR Doc. 2022-07306 Filed 4-4-22; 11:15 am]
BILLING CODE 4163-18-P

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